Homestead-The Post-Death Spousal Disclaimer: A Cure for a Constitutionally Prohibited Devise?

This article talks about what happens to a person’s home after they die if they leave it to someone who is not their spouse, even though the law says they should leave it to their spouse. The article suggests that the spouse can give up their rights to the home so that the person the home was left to can keep it. However, this might not be fair to the person’s children. There are different opinions about what should happen in this situation, and the higher courts will need to decide. The Florida Constitution says that if someone dies and their spouse or minor child is still alive, their homestead property can’t be given to anyone else in their will. If the property isn’t given away properly, it will be divided up according to the law, with the spouse getting to live there for the rest of their life and the children getting it after that. This happens automatically when the person dies, no matter what they wanted. When a spouse gives up their right to the family home before the other spouse dies, the property can be sold as part of the will. If the spouse waits until after the other spouse dies to give up their right to the home, it may or may not affect the rights of any children or grandchildren named in the will. In one case, the court said the children’s rights couldn’t be changed, but in another case, they said the spouse’s decision was enough to make the will legal. It might be better to give the spouse a choice to either take the home as part of the will or have the right to live there for the rest of their life. This way, it would make things simpler and protect the rights of the spouse. Basically, when someone dies, their spouse may have to give up their rights to the house if it was left to someone else in the will. The spouse can use a legal disclaimer to do this, which basically means they’re giving up their rights to the house. A court case called Cleaves said that a spouse can use a disclaimer even after their partner has died. But there’s a different court case called Ryerson that says a spouse can’t give up their rights to the house if the adult children are involved. So, it’s a bit complicated and different courts have different opinions on this issue. In simple terms, the court said that a person can only disclaim an interest in property that they actually have. In the case of Ryerson, the spouse couldn’t disclaim more than the life estate she had in the property. The court also said that the adult children’s rights to the property became final when their parent died, and the spouse couldn’t change that after the fact. Another case, Jacobs, also said that the spouse couldn’t waive her rights to the property after the parent died, because it would affect the children’s rights. So, it seems that the children have the right to contest any improper changes to the property after their parent’s death. The law in Florida about homestead property can be pretty confusing. If someone tries to leave their homestead property to someone else in their will, but that’s not allowed by the Florida Constitution, then it’s still not allowed, even if the person who is supposed to get the property says they don’t want it. There’s a new rule that lets a spouse decide if they want to give up their rights to the property and take what’s left in the will instead, which can make things even more complicated. It would be helpful if the government or the courts could make the rules clearer so that people know what to expect when it comes to passing on homestead property after someone dies. Giving a spouse the choice to give up their rights to the property and take what’s left in the will makes sense, especially when there are no young kids involved, because it gives the spouse more control and makes sure the person who passed away gets their wishes followed. The Florida Constitution and laws prohibit the passing of homestead property to someone other than a surviving spouse and lineal descendants. This may not be popular, but it’s the law and must be followed until it’s changed.

Source: https://www.floridabar.org/the-florida-bar-journal/homestead-the-post-death-spousal-disclaimer-a-cure-for-a-constitutionally-prohibited-devise/