A last will and testament or revocable trust may not protect your family in this instance.
Q: When my neighbor’s father died, his revocable trust left the family home to his children. Their mother died 10 years earlier and their father remarried. When the second wife learned that her husband’s revocable trust did not leave the home to her, she immediately filed for probate claiming she had the right to either live in the house for the remainder of her life or be granted a 50 percent ownership interest in the property. Doesn’t a last will and testament or a revocable trust entitle only the named beneficiaries to ownership of the deceased’s assets?
A: Although that is true in most circumstances, when it comes to the family homestead, under Florida law, the spouse of the decedent is entitled to either remain in the home for life or elect to retain 50 percent ownership within six months following the death of their spouse. Consider the following example.
Robert died and was survived by his third wife, Susan. Robert was a disabled Vietnam War veteran in his 60s when they first met. Susan was half his age and had been a caregiver to veterans for many years. She cared for Robert in his home for several years prior to marrying him just four months before he died.
Alice, the daughter of Robert’s first wife and the same age as Susan, lived in the home her entire life. She was born with a learning and memory disorder entitling her to receive social security throughout her life. Robert wanted to be sure that Alice had a home of her own following his death, so he prepared a revocable trust naming her beneficiary of the family home and all other assets that he acquired during his lifetime.
When Susan learned of the revocable trust following Robert’s death, she hired an attorney and filed a case in the probate court claiming she was entitled to a life estate of 50 percent ownership under Florida law.
Alice was forced to hire an attorney who argued that Susan had already received one life estate from another veteran who she married just months before he died and is currently renting out that property for additional income. Furthermore, because Alice is the same age as Susan, Alice may die first and never see any benefit from her inheritance.
Susan’s attorney argued that being a caregiver creates an emotional bond between the caregiver and the patient and that it’s not uncommon for them to fall in love and marry. Furthermore, he argued, simply because you are married for a short period of time, the law doesn’t punish a spouse simply because she owns another life estate. In Florida, a surviving spouse may have multiple life estates in addition to a life estate or ownership in a homestead.
If you have a blended family consisting of second or third marriages and children by each of those marriages, consult with an estate planning attorney before you fracture the family inheritance.