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

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.  Read more

A Spouse’s Rights Even If a Will Leaves You Nothing

Spouse RightsYou may think that if you’ve been written out of your spouse’s will, you won’t inherit a thing, but that may not be true. Ditto if your partner drafted their will before you were married. That’s because Florida law protects spouses from total disinheritance, regardless of what a will says.

A husband or wife, for instance, has rights regarding your primary, or “homesteaded,” home. If your spouse has no children, the home would automatically pass to you. Even if he or she has kids from a prior marriage and left the house to them, you still have the legal option to live in the house for the rest of your life (known as a life estate), or to immediately become a 50 percent owner of the home.

Beyond your house, a spouse is also entitled to some of the deceased person’s money. In general, the law gives you 30 percent of your late spouse’s assets, including assets that fall outside the probate, such as property in a trust in their name. This also holds if the person wrote their will before they married you and left all their stuff to a parent or someone else.

The law also provides for a disinherited spouse to receive some money, called a family allowance, from the estate’s assets even before the probate is completed and all the money is distributed.

Of course, all of these rights may have been waived by the spouse if he or she signed a valid premarital or postmarital agreement.

Don’t try to understand these complex laws yourself. If you live in South Florida and need the advice of a probate attorney, contact us at The Law Office of Gary M. Landau, P.A.


Homesteaded property enjoys a complicated and confusing status under Florida probate law.  It isn’t a probate asset, but to get its special non-estate status, it has to be certified as such by a probate judge.  In other words, the only way to keep it out of probate is to take it there first, unless the owner takes the necessary action while alive to avoid probate.


Once someone decides to make an asset their homestead, the homestead laws can supersede what someone puts in his will. For instance if a person wants to leave his homestead to his girlfriend, that bequest won’t work if he’s still married at the time of his death. If a decedent is married, his spouse will have rights to the property until she dies, even if she is excluded from the will. She will have the right to choose between a life estate in the property and, in some cases, a 50 percent interest in the property even if she isn’t on the property’s title.  Furthermore, the decedent’s descendants also get rights to the homesteaded property.

 An example of how this probate/non-probate status of homestead property works is as follows:

 Ted Testator has a homestead condominium that he leaves to his 3 adult sons, Danny, Martin, and Joe in his will.  Ted dies and then Joe moves into the condo.  He doesn’t give his brothers access and won’t pay any of the carrying charges.  Even though a probate estate has been opened, the Probate Court won’t have the authority to hear this case.  A separate action must be brought in the Circuit Court, if the brothers want Joe out or want to sell the property.

 While the Probate Court cannot decide Joe’s fate, the Probate Judge can declare a property “homestead.”

While homesteaded properties are still subject to liens directly placed against them, like taxes and mortgages, they enjoy protection from other creditors.  As such, a homestead usually cannot be sold to meet other obligations of the estate. This protection can shelter the home’s equity for the heirs of the decedent, whoever they might be.

Ultimately, Florida’s laws dealing with homesteads and with transferring the property of deceased parties are extremely complicated and nuanced.  Given that most people do not have to deal with them on a regular basis, the help of an experienced estate attorney can be valuable.  An experienced attorney can manage these complexities and ensure that the family’s rights are protected throughout the process.