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I live in FL. Married 4 years and have a 3yr old son with my husband. He has a son from a previous marraige that lives with us

Naples, FL |

every other week. He refuses to put my name on the house. He will not make a will. It is not paid for there is a mortgage. If he dies unexpectedly what would happen to us? Would the house become mine and my responsibility? He was married before and it was determined in that divorce his home was a premarital asset. The property it sits on was sold to him by his parents for $1 as an early inheritance. If he were to pass away they don't like me. Can they kick me out?

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Attorney answers 5


Even if it is still considered non-marital property, you might have some interest in the house if anything you do contributes to an increase in the value of the property. However, if you are not on the mortgage or the note, you are not liable. All of that is very speculative, however, and it doesn't sound like he is all that concerned with taking care of you. You can take out a life insurance policy on him, he does not have to do that and I don't believe you need his permission - you can go check with an insurance broker about how to do that. That would cover the issue of any unexpected death, so long as the reason for the death was covered by the policy. If you get divorced, however, you will definitely need a lawyer.

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I disagree with both my colleagues answers. In Florida, when you are married and your spouse dies testate, you have an option to receive what is called an "elective share" of your spouse's estate (30% of the value of the estate). You may also claim a family allowance to pay for your support before the elective share becomes available. If your husband dies intestate, you will receive half the estate (his son from a previous marriage taking the other half). In the case of the home, if it is a homestead, you will minimally have a life estate interest in the home which means that you cannot be kicked out - however, you would still need to make the mortgage payments or the lender can foreclose to recover its debt. Determining what is in your best interests is why you need a competent probate attorney to help you figure out what your rights are. You are absolutely correct to be concerned for your family's future prospects should your husband die.

Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact an attorney for legal advice concerning your matter.


Attorney Morcroft's answer shows the different perspective that real estate lawyers and divorce lawyers have. If you and your husband are still married when he dies, you will get a life estate in the house (which means that you own it for your lifetime), then it will pass equally to all of your husband's children (from your marriage or otherwise). If the house has a mortgage on it, I agree that it is a good idea to insure your husband life so that the mortgage will be paid off.

Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

Heather Morcroft

Heather Morcroft


I didn't even think about the homestead issue, and her right to take against the estate. Mr. Deason is right. This shows not only the value of getting different perspectives on a forum like this, but of actually consulting with an attorney, where the attorney will look at all aspects of your question. Most of us, if sitting down with you and reviewing your situation as a whole, would identify the real estate or family law issue, regardless of our specialty, even if it meant we needed to consult with another attorney.


Attorney Deason makes a very astute and accurate observation about the difference in perspective between us transactional practitioners and our friends in the litigation side of things.

I agree with his and attorney Johnson's answers. I would also add that whether you have a life estate depends on whether there is a valid pre or post nuptial in place. If you validly waived your homestead rights, you can be kicked out. If there is no such waiver at minimum you have a life estate and cannot be kicked out under ordinary circumstances. You also have the option to convert your life estate and instead take a 1/2 interest in the real property as tenant in common sharing the other 1/2 interest with his children.

Good luck in any event.


No-they can't kick you out.
I agree with the answers posted except Attorney Batista's answer
and approach.
You have a right to be concerned for you and your family and should continue
to gently pursuade your husband to do proper estate planning.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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