You own property with your spouse as “tenants by the entirety.” And I’m sure you have heard about the restrictions on devising your homestead. But guess what? The Florida constitutional restrictions on the devise of homestead property do not apply to property owned by spouses as tenants by the entirety. As a result, the property passes by survivorship to the surviving owner. This is true even when the deceased owner is survived by minor children.
However, the homestead property becomes subject to restrictions on devise if the surviving tenant has a minor child or remarries. These examples may clarify the law-some of them sound downright scary! If you do not know how you own the property, check out the deed on the Property Appraiser’s website for your particular county. Learn about other ways to own property.
A husband and wife have one minor child. The marital residence is titled in the names of the husband and wife as tenants by the entirety. The husband dies intestate (no Last Will) survived by his wife and their minor child.
Result: Title passes to wife by operation of law as the surviving tenant by the entirety.
Same facts as above except that the wife dies ten years later just before the child’s 18thbirthday. The wife left a Last Will leaving her estate in trust for her minor child, to terminate when the child reaches 25.
Result: The devise FAILS. The house passes by operation of law to the minor child free of trust. A guardianship of the property would be established for the minor child to assist with the minor child’s interest in the residence, until the child reaches 18.
Same facts again, but this time husband and wife both die in a common accident, and it is not possible to determine the order of death. Each spouse’s will leaves his or her estate to the surviving spouse, and then in trust for the kids until they reach 25.
Result: Each spouse is deemed to have survived the other with respect to their interest in the marital residence. Each spouse’s interest in the house passes by operation of law to the minor child free of trust. The court would establish a guardianship of the property. More about planning with children.
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