A: This is a question I am asked regularly from clients on their second marriage who are drafting their wills. They want to leave their house to their biological children, not a current, often late-in-life spouse. However, Florida law provides for a “homestead” protection for spouses, giving them special rights to their primary residence. That means a person cannot disinherit a spouse from homestead property. Even if your will were to state that your children are to get your house after your death, the courts would not honor your wishes. The only way around this law is if your spouse signed a prenuptial agreement before you two were wed, waiving her rights to the homestead property. If this is not the case, work with an attorney to draft your will so that it complies with Florida law, perhaps by leaving your home to your spouse but more of your money to your kids.
Gary Landau is a Coral Springs-based real estate and probate attorney. He can be reached at 954-979-6566 or via www.GaryLandau.com.