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What rights does an estranged spouse have to a home that her spouse resides in in Florida covered under the homestead act?

Port Charlotte, FL |

The situation is that the spouses have not resided together for four years but are not yet divorced and one spouse lives in a Florida home that is covered by the homestead act. If the resident spouse dies does the surviving none resident spouse who has never lived in the house have any legal claim to the house in the event of the death of the spouse who is listed on the deed and resides in the homestead house even if she is not on the deed and is the estranged wife autimatically considered the co-owner because of marriage? Can the homestead resident create a irreversible trust to ensure that someone else other than the estranged wife would be granted the homestead after his death?

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Attorney answers 3


Homestead can not be transferred(absent pre or post parital agreement) without both signatures . Surviving spouse has automatic rights depending on if children exist.


The homestead owner cannot transfer the homestead, nor can he encumber the homestead without the spouse's signature (unless there was a pre-nup or post-nuptial agreement where the spouse waived her rights). At death, Florida law provides that the spouse takes a life estate in the property with the remainder to any children. If the owner attempts to give the homestead to someone other than the spouse under his will, the devise is ineffective and the property descends by intestacy as though there was no will. If there are no children, then the property becomes the spouse's; if there are children, spouse takes life estate. Under the new Florida Statute, the surviving spouse can elect to take a tenants in common interest in the house with the children. This allows the spouse to not be unreasonably burdened by a life estate. A "homestead trust" is possible, but again, only if spouse signs off on the deed.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
Circular 230 Disclaimer: Any information in this answer may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.


A married individual in Florida cannot convey his or her homestead property without the joinder of his or her spouse, absent a specific marital agreement (commonly referred to as a prenuptial or postnupial agreement) in which the spouse waives his or her right to homestead property. Florida has constitutional and statutory prohibitions against any such conveyances. Also, a married person cannot encumber his or her homestead property without the joinder of his or her spouse. Any attempted deed or attempted mortgage which does not include the spouse would be deemed void under Florida law, if the existence of the marriage at the time the document was executed is provable. At the death of a married person owning a homestead, a life estate in the homestead is vested in the surviving spouse of the decedent, with a vested remainder in the lineal descendants of the decedent in being at the time of his or her death, in equal shares. This is so regardless of any will to the contrary which the decedent may have left. The deceased husband could not really have conveyed the homestead, if he were married at time of attempted conveyance, into an irrevocable trust effectively, if his spouse did not join in the deed into the trust. You will need to hire an attorney to review the chain of title and look at each instrument to better advise you of your rights and liabilities regarding the homestead property. Keep in mind, however, that if you have ever signed an agreement waiving all claims to homestead your husband may own or acquire, you may have already forfeited your homestead right to the property in question. If you have never signed any such agreement, you must also consider the possibility that your husband procured a divorce from you without your knowledge at some point in time, becoming a single man, though the validity of such a proceeding may also be in question if you were not notified or served with notice of process of any such action to dissolve the marriage. You should really speak with an attorney about the various possibilities in the scenario you have described because there are any number of angles to consider in evaluating your legal position.

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