Law Office of Gary M. Landau, P.A. Urges Homeowners to Add Spouses to Title

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By Gary M. Landau, Esq.

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Law Office of Gary M. Landau, P.A. Urges Homeowners to Add Spouses to Title | Coral Springs, FL | Call (954) 979-6566

CORAL SPRINGS, Florida—Gary M. Landau, a leading South Florida real estate attorney with over 25 years of experience, urges homeowners and future homeowners to be sure their spouse is added to their home’s title even if they are not on the mortgage note. This is important for every couple–but is especially so when a spouse has children from a prior marriage.

Many couples mistakenly think that because they’re married their spouse will inherit their house when they pass away. But this is only the case when the spouse is jointly recorded on the deed.

The state of Florida does offer a spouse who is not on the deed special considerations for their primary residence. But problems can still arise, especially if the spouse named alone on the deed has children from a prior marriage.

Should the named spouse pass away, the surviving spouse who is not named on the deed cannot simply keep the home or decide to sell it. Instead, the law allows them to opt (within six months of the person’s death) to take a 50 percent share of the home. If they choose not to do that, they are entitled to a life estate, a legal arrangement where they can stay in the home as long as they want to, including for life.

However, while a life estate confers the right to use the property, the spouse cannot transfer or sell the home without permission from the deceased spouse’s children. If the spouse does not want to remain in their house, he or she can sell it with permission, splitting the proceeds.

If the home under discussion is not a primary residence, the living spouse has even more limited rights to the property.

Primary homes are granted that extra protection due to Florida’s Homestead Exemption, a law pertaining to primary residences in the state. Having homestead on the property, for example, protects the residence from certain creditor claims. It also reduces property taxes, allowing Florida residents to claim up to $50,000 in exemptions from the assessed value of their homestead residence. (To qualify for this exemption, an individual must own and use the home as a primary residence starting January 1st of the year they apply. The exemption applies to all ad valorem taxes, including school district taxes.)

Landau has seen first-hand how spouses can be blindsided after their partner dies and they are not listed on the deed. He recently had a client in this exact situation. The property was her primary residence, and she and her spouse lived there for years. But after he passed away she wanted to move. Her husband’s children from a first marriage, however, were now legally entitled to half the house. And they did not want the home to be sold.

Because the woman was not listed on the deed, his family was able to block the sale, so she was forced to continue living in the home while our law firm negotiated with his children. After several months, they eventually allowed the sale.

“Checking that your spouse is on the title, and adding them if they are not, ensures they will have full rights to the home should their partner unexpectedly pass away. I encourage Florida homeowners to learn from my clients’ troubling experiences and add their spouses to their home’s titles to avoid future problems,” Landau says.

“Had my widowed client been listed on the deed, she could have sold her home right away. Instead, while grieving the loss of her husband she also had the aggravation over her home’s ownership. This illustrates the importance of protecting your spouse from future disputes over the place they call home.”

If your spouse is not currently listed on the deed, an experienced real estate attorney can add them. If you are buying or refinancing a home, talk to your closing attorney about the importance of ensuring your spouse is listed.

“An attorney can help you understand the potential consequences of not having both names on the title and can guide you through the process to avoid problems down the road,” Landau says.

For more information, visit https://garylandau.com/.

About the LAW OFFICE of GARY M. LANDAU, P.A.

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the Law Office of Gary M. Landau is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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