What are the surviving spouse’s elective share rights to homestead?

Attorney Tom Olsen: Usually a married couple own their home together. Sometimes just the husband or wife will be on the title to the home. What happens to the home when a spouse dies without a will? In that case, the surviving spouse has two choices regarding the homestead: The surviving spouse can take a life estate in the home and will get to live there for the rest or his or her life, or the surviving spouse can take a one-half ownership interest in the home as tenants in common with the deceased spouse’s children.

Chrissy: It does. And I think that this is something that people don’t realize. Having the title to the home in just the husband’s name or just the wife’s name is more common than you think. Having the title to the home in just one spouse’s name often happens when there has been a second marriage or one of the spouses inherited the home property.

Attorney Tom Olsen: People often ask us to transfer the title to their home out of just the wife’s name or out of just the husband’s name and into both names as husband and wife. The advantage of adding your husband’s or wife’s name to the deed is that, if one of them passes away, the home will automatically go to the surviving spouse without going through probate.

Because the wife passed away with a home in her name only, the home will have to go through probate.

We have a great tool for avoiding probate on your home or other property. It’s called an Enhanced Life Estate Deed also known as a Lady Bird Deed and we have booklets on that Lady Bird Deed, we would be happy to mail it to you. If you want to get out booklet on Lady Bird Deeds, you can call or text Chrissy anytime at 407-808-8398.

Call or text Chrissy at 407-808-8398 if you need a lawyer or attorney in Central Florida including Orlando, Winter Park, Windermere, Daytona Beach, The Villages, Melbourne, Altamonte Springs, Lake Mary, Longwood, College Park, Bay Hill, Oviedo, Sanford, DeLand, DeBary, Deltona, Leesburg, Clermont, Thornton Park, Baldwin Park, Ponce Inlet, New Smyrna, Ormond Beach, St. Augustine, Kissimmee. Olsen Law Group in Orlando at 407-423-5561.

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Surviving Spouse’s Elective Share Rights to Homestead: Ensuring Financial Security After Death

Losing a spouse is a devastating life event, but it is crucial for the surviving spouse to be aware of their rights and protections, especially regarding their share of the homestead. To safeguard the financial security of the surviving spouse, many states have implemented laws providing them with elective share rights to the homestead, ensuring they can continue living in their marital home even after their partner’s passing.

The term “homestead” refers to the family’s primary residence, where the couple lived together during their marriage. It is often the place where countless memories have been created, making it even more vital for the surviving spouse to retain this property and the sense of stability it provides.

The elective share right is a statutory provision that grants the surviving spouse a certain percentage of the deceased spouse’s estate, including the homestead property. This protection ensures that even if a deceased spouse leaves the majority of their assets to other beneficiaries, the surviving spouse can claim their share, preventing them from being left without adequate assets or shelter.

The specifics of the elective share vary between states. While some states offer a fixed percentage, such as one-third or one-half of the deceased spouse’s estate, others consider factors like the length of the marriage when determining the surviving spouse’s share. Additionally, some states grant the surviving spouse with a life estate, meaning they can continue living in the homestead until their death, while others provide a right to occupy the homestead outright without limitation.

It is crucial for surviving spouses to understand their state’s homestead laws and the rights bestowed upon them to ensure they receive their rightful share. Seeking professional advice from an attorney or estate planner knowledgeable about local laws is highly recommended to facilitate a smooth transition and avoid legal disputes.

These elective share rights aim to protect the surviving spouse against any undue influence or manipulation that might occur during the estate planning process. Without these protections, a deceased spouse could potentially leave the homestead entirely to other beneficiaries, leaving the surviving spouse without a place to call their own or the financial means to secure alternative housing.

However, it is important to note that these elective share rights may not apply in certain circumstances. For instance, if a prenuptial or postnuptial agreement exists, where both spouses have willingly agreed to waive their rights to the elective share, then the surviving spouse may not be entitled to claim the homestead.

The elective share rights serve as a crucial lifeline for surviving spouses, offering them the financial security they deserve during an already difficult time. By protecting their right to the homestead, these laws aim to provide stability and peace of mind, allowing the surviving spouse to grieve and heal without the added burden of homelessness or financial insecurity.

It is essential for both spouses to be aware of their rights and obligations, not only during the estate planning process but also in the event of a partner’s death. Open communication, understanding, and support can help ensure that the surviving spouse’s rights are upheld, and they receive the necessary provisions to continue living in their cherished homestead.

Losing a spouse is never easy, but knowing one’s rights and protections can ease the burden and provide the financial stability necessary for the surviving spouse to rebuild their life. The elective share rights to the homestead are a crucial aspect of estate planning that can safeguard the surviving spouse’s rights, allowing them to navigate the difficult transition with peace of mind and financial security.