Legal Question in Wills and Trusts in Florida

Jackie:

You have asked a very complicated question under Florida "homestead" law. Based upon the limited facts you have provided, it would appear that your sister will be the owner of the residence and your father's spouse (assuming no pre-post nuptual agreement) will maintain a "life estate" interest in the residence. As the life tenant, your father's spouse can, in her discretion, allow you to remain but has NO obligation to do so (unless you are a minor). Many facts can impact this conclusion under Florida law.

First, I'm assuming this is in Florida.

Second, frankly, you need to talk to a probate lawyer to make sure that you aren't missing some relevant facts; there are a few things that could change this answer.

But: Assuming the following facts: father drafted will prior to marriage; left everything in that will to one child; THEN got married, and did NOT have a prenuptial agreement or other document signed by NEW wife waiving rights; THEN he died, the answer is:

1) his will was partially revoked by the marriage; see FS 732.301 , pretermitted spouse, which means the wife gets half of the probate estate automatically; if there are not significant assets in the probate esate but much of the value of the estate passes outside of probate, then wife can force an 'elective share' which gets really complicated, but is generally set out in FS 732.201 to 732.228

2) To the extent that he leaves the house to his daughter, your sister, and not his wife, the entire provision is thrown out; it's simply invalid. See FS 732.4015 ("As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner's spouse if there is no minor child or minor children". Point is, if he was survived by wife, then the part of the will that leaves house to his daughter, your sister, is just invalid.)

The new wife gets what is called a "life estate" which means she owns the house, the whole house, for her life; upon her death the title to the house passes in equal shares to the children of your father (you, your sister and any other children); you all get what is called a 'remainder interest'; it does NOT automatically go to the sister. See FS 732.401: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent's death per stirpes.

If you've got questions, call a probate lawyer; and if sister tries to throw you or your stepmom out, DEFINITELY call a probate lawyer.

Jackie, it depends upon how the property was titled and whether the will is valid. His second wife may have an interest in the property. His verbal request that Jill do the right thing doesn't have any legal value. The estate will be probated and if the second wife has any rights to the land, it will be determined at that time. Either way, you could be asked to move out, unless you are a minor. Regards,

His wife does and you do not.

Please don't anyone listen to Slater. Ronald Jones' comprehensive answer is correct.