When a person marries or remarries, each partner assumes legal rights and responsibilities. Among those is one found in the Florida Constitution, which protects each spouse’s homestead right, so that spouses will not be left without a home. Florida has one of the strictest protections available. Depending on the circumstances, a spouse may acquire the right to reside for life, in real property that is titled solely in his/her spouse’s name if the married couple resided there, even if the deceased spouse owned such residence before the marriage. Also, unless other agreements are made, such as a pre-nuptial agreement, if such homestead were to be sold, or, if an equity loan or mortgage were taken on the residence, the new spouse would have to join in the conveyance.
This right to a life estate in the homestead, is in addition to other rights, such as the elective share right which is acquired by a surviving spouse when his/her spouse dies. The surviving spouse is entitled to 30% of the deceased spouse’s “Elective Estate”, which includes both probate and non-probate assets held in the name of the deceased spouse alone, most assets with beneficiary designations such as bank accounts, securities, IRA accounts, and jointly held property, annuities, certain interests in trusts, as well as the cash value of life insurance.
In those cases where the deceased spouse executed an estate plan prior to the date of the marriage, (wherein he/she may have devised property to the deceased spouse’s child(ren) from a previous marriage(s) or relationship), such an estate plan will not in and of itself, deny homestead or elective share rights to a surviving spouse. For example, if the deceased spouse had signed a Will before his/her marriage, leaving his/her entire estate to his/her children, and then married but never signed a new Will and/or Trust, the surviving spouse would be entitled to 30% of the deceased spouse’s elective estate – and/or to 50% of the deceased spouse’s probate estate (the share that he or she would have received had the deceased spouse died without a Will, since the surviving spouse would be considered a “pretermitted spouse”, i.e., omitted from the pre-marriage Will). This is so because the law makes the assumption that a deceased spouse would have provided for his/her spouse if he/she had made a Will and/or Trust after the marriage.
It is difficult to determine which assets would be subject to probate, and therefore, hard to say whether the pretermitted share would be greater or less than the elective share – however, a surviving spouse has the right to claim the greater of the two. On the other hand, if the predeceased spouse made a Will and/or Trust after the marriage, but still failed to provide for the surviving spouse by devising his/her assets, including his/her homestead (even if purchased by him/her prior to the marriage) then it’s probable the surviving spouse will have acquired homestead rights for life and in addition, may elect thirty percent 30% of the deceased spouse’s elective estate.
A surviving spouse also has an exempt property right and family allowance right. The exempt property right entitles him/her to household furniture, furnishings and appliances from the residence of up to $20,000, and to any automobiles held in the name of the predeceased spouse and used by the immediate family as well as to the predeceased spouse’s interest in certain employee death benefits and program contracts such as those in the Florida Prepaid College Trust Fund. The family allowance right gives the surviving spouse a family allowance of up to $18,000. Lastly, a surviving spouse is also given preference in appointment as personal representative of an intestate estate.
Therefore, proper estate planning which includes testamentary documents such as a Will and/or Trust, as well as spousal agreements such as prenuptial, postnuptial and cohabitation agreements, enable couples to plan for unexpected life events, significantly easing the handling of legal affairs upon death as well as death and even divorce.
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