Previously Married With Kids? Make Sure You’re Leaving Your Home to Those You Intend

Get The Legal Help You Need

By Gary M. Landau, Esq.

Call (954) 979-6566 Today
Previously Married With Kids? Make Sure You’re Leaving Your Home to Those You Intend | Coral Springs, FL | Call (954) 979-6566

Pretty much every week I meet with a couple who have been married previously, who want to be sure their will is up to date. Ensuring that a will and other important documents that you drafted years ago are current is a valuable exercise, one I recommend couples do regularly. (More on this below.)

But married couples who have children from a prior relationship need to look beyond their will to consider what is likely their most important asset: their home. 

And that requires a close look at your deed. 

If Your Home Goes Directly to Your Spouse

When most couples buy their home, their closing agent has them take ownership in what is known as “tenancy by the entireties.” 

What this means is that if one person in the marriage passes away, that person’s portion of the property immediately transfers to the surviving spouse. No probate is necessary. Another benefit of this type of deed is that, if a judgment is entered in court against one of the spouses, it does not become a lien on the property. 

That sounds fine until you realize that if the deceased spouse has children from a different relationship, their children may never see the money that ultimately results from the sale of the home. 

Why? Because once the property passes to the living spouse, that person can do with it whatever they wish. If they turn around and change their will to leave all their assets to their own biological children (which unfortunately happens regularly, even if the spouse promised the partner he or she would not do that), the deceased spouse’s children will not inherit any of the homes when the other spouse dies. 

Or, if the living spouse decides to sell the home while still alive, they can keep all of the profits for themselves, or choose to parcel out proceeds to their own children only (which, alas, is also something I regularly see).

Couples in This Situation Need a Different Deed

This is why I generally recommend to married couples who have children from a prior marriage that they take the title of their home as “tenants in common.” What tenants in commons mean is if one person dies, that person’s half goes directly to his probate heirs, not to the spouse. (If the property is homestead, under Florida law the surviving spouse can remain in the home as long as they want, regardless of what the deceased person’s heirs desire.)

If you are in this situation and do not own your home as tenancy by the entireties, your deed can be changed.

Of course, this type of deed means that when one spouse dies, that person’s portion of the home will need to go through probate. There are costs and time delays associated with the probate process. 

The other negative of a tenant in a common deed is that you lose the rule that protects the home from a judgment against one of the spouses. 

However, this is the easiest way a couple on their second (or third, or fourth…) marriage can be certain to protect the future assets of their own biological children. 

How to Change Your Deed

If your deed currently lists tenancy by the entireties and you want to change it to tenants in common, this is something a real-estate lawyer can easily do.

The lawyer will create a new deed, typically within days. The property owners simply need to sign this new deed in front of two witnesses and a notary. They also need to pay the county minimal recording fees. This can be done even if you still have a mortgage on the property.

Other Estate-Planning Items You Should Double-Check

Your will and your deed are not the only items you should periodically check to be sure you’re up to date in your estate planning. Other documents you’ll want to review include your living will, healthcare power of attorney and, if appropriate, your power of attorney. 

You’ll also want to be sure your beneficiary forms from your bank accounts, investments, and retirement plans are accurate, so the money in those accounts flows directly to your desired beneficiaries, without going through probate. Similarly, your life insurance beneficiary, if you have a policy, should accurately reflect your current wishes.

Consider How You Want to Die

Finally, while it’s hard to think about the end of your life, it is crucial to do so, especially if you are elderly or have a serious medical condition. Otherwise, your spouse or children will be put in the difficult situation of trying to figure out your needs. 

These decisions go beyond whether you want to be on artificial life support, something the living will covers. 

That’s why, in consultation with hospice experts, my firm created the free document My Last Emotional Wishes. This form does not replace a will or living will and is not a legally binding document. But it gives your family peace of mind that they’re acting as you would want them to.

Probate Attorney Coral Springs

You can download this free form at the bottom of the home page of my website.

Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.

Law Office of Gary M. Landau P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
954-979-6566

©Copyright 2019. All Rights Reserved.

0/5 (0 Reviews)

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.
Scroll to Top