The spouse name is'nt on the Mortgage just the deed. Can the bank take the house from her.
A surviving spouse can have rights to the real estate of a deceased spouse through the homestead protections in the Florida Constitution and, if the home was not the decedent's primary residence, through Florida's Elective Share laws. The rights depend on many factors, so it is never easy to say where the surviving spouse stands until all of the facts are reviewed by an experienced attorney.
The mortgage is a lien that continues after the owner dies. It might be possible that, if the home was the owner's primary residence when they signed the mortgage, and it was their primary residence when the died, and the owner was married when they signed the deed and they were still married when they died, the surviving spouse might be able to argue that the mortgage was not valid. However, that takes a significant number of facts to fall into place.
I would urge you to talk to a local attorney and discuss all of the facts. Only then will you get an appropriate answer. You just can't get proper advise without sitting down with an attorney and discussing the situation.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
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If what you are saying is that the deed to the property has the names of both spouses on it but the mortgage only has the name of one of the deceased spouse, then the sole ownership of the house goes to the surviving spouse by operation of law. The fact that the surviving spouse's name is not on the mortgage is of no consequence. As long as the surviving spouse continues to make the monthly mortgage payments the bank is not going to do anything. Banks have enough on their hands these days in dealing with foreclosures on upside down properties where the owners have defaulted. They would either not notice or not care that the surviving spouse has not signed the note and mortgage -- again, as long as the mortgage is being paid.
If its not paid then the bank can default the mortgage and institute a foreclosure action but it would not be able to obtain a personal money judgment against the surviving spouse for any deficiency between the amount owed on the mortgage and the amount the property actually sells for.
In short: tell this surviving spouse not to worry.
The foregoing is offered for informational purposes only and is not legal advice nor has there been created hereby any attorney-client relationship.
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