What is the best way to protect my adult children and my house before I remarry, a will or a trust?

Asked about 2 years ago - Fort Lauderdale, FL

House is under my name only and still owe about $120,000. Current value approximately $345,000

Attorney answers (4)

  1. Ruth Elaine McMahon

    Contributor Level 18

    7

    Lawyers agree

    1

    Answered . In Florida, your home is "protected homestead" under the Florida Constitution. If you marry and pass away, your new spouse will receive a minimum of a life estate in the property. Your greatest protection for your children is a prenuptial agreement (agreement with spouse BEFORE you are married). Your fiance can waive his or her rights to homestead under a prenuptial agreement. Then, either a will or trust stating that you and your fiance entered into a prenuptial agreement and you intend for the terms of that agreement to control. If, after you are married, you have a child of that marriage and you pass away before the child attains majority (18 in Florida), it's a different story. The Constitution protects minor children and a spouse cannot waive the rights of an unborn child. You need to consult an estate planning attorney who understands constitutional homestead and ask to have a prenuptial agreement prepared that will protect your home and adult children.

  2. Michael Leo Potter

    Contributor Level 20

    3

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . I concur. Sit down with a Florida estate planning attorney and get BOTH a Pre-Marital Agreement and a Living Trust prepared, so that you protect the inheritance you want your children to have. Good Luck!

  3. Charles Patrick Kincannon

    Contributor Level 3

    2

    Lawyers agree

    Answered . I agree with my colleagues. I strongly suggest a properly drafted prenuptial agreement by a competent Attorney as well as a comprehensive estate plan that addresses your concerns.

  4. Lawrence A Friedman

    Contributor Level 18

    3

    Lawyers agree

    1

    Answered . Neither. The ONLY way to properly protect children from a prior marriage is to consult with a family law attorney before you get married and work with an estate planning attorney accordingly. A pre-nuptial agreement seems in order. Life insurance and/or a trust also may be useful. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

23,827 answers this week

3,010 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

23,827 answers this week

3,010 attorneys answering