A. Bob and Susan are married. Bob has 2 children and Susan has 2 children. They don’t have any children together.

B. Dick and Jane are married. Dick has 3 children and he and Jane have 2 children together.

C. Rex and Lisa are married. Lisa has 1 child and Rex and Lisa have 2 children together.

In Florida, INTESTACY Law applies if there is no Will or if the Will is invalid:

(1) If there is no surviving descendant of the decedent, the surviving spouse’s share is the entire intestate estate.

(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse’s share is the entire intestate estate.

(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the surviving spouse’s share is one-half of the intestate estate.

(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, the surviving spouse’s share is one-half of the intestate estate.

In the above Examples:

If Susan leaves no Will or an Invalid Will, Bob’s share is one-half of her intestate estate.
If Dick leaves no Will or an Invalid Will, Jane’s share will be one-half of his intestate estate.

If Rex leaves no Will or an Invalid Will, Lisa’s share will be one-half of his intestate estate.

Florida’s Constitution restricts a married person from making a gift by will or trust of HOMESTEAD property or primary residence without the consent of the owner’s spouse.

(1) If the surviving spouse is left with the homestead, they will receive a life estate, which means they can live in and use the property for the rest of their life.

(2) Within six months of the deceased spouse’s death, the surviving spouse can choose to take an undivided one-half interest in the homestead instead of a life estate.

(3) A surviving spouse can waive their homestead rights.

In the above Examples:

Bob Dies. The Homestead property Deed has only Bob’s name on it. Result: Susan has a life estate; or she can choose one-half interest, or she can waive.

Jane Dies. The Homestead property Deed has only Jane’s name on it. Jane has a Will that leaves her homestead property to her 2 children. Result: Dick has a life estate, or he can choose one-half interest, or he can waive.

Rex and Lisa are both on the homestead Deed as husband and wife (tenants by the entirety) and Rex Dies. Result: Lisa owns the property 100%

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.