My brother, who lived in Lee County Florida, passed away recently. He owned a home free and clear. After acquiring the home he got married. She was never put on the deed. After 2 years she left him. That was 10 years ago and there was no contact for that entire time. My brother had a will and left his house to his 5 siblings. He had no children. He specifically said in the will that his wife (they never got a divorce) was to get nothing. She has come forward now and is trying to claim a life estate status on the home. Can she succeed? This was our parents home and we are all greatly troubled by it as it was the last thing our brother would want.
Sadly, this is an example of where avoiding a legal problem creates a worse problem. If your brother had gotten a divorce, his estranged wife wouldn't have a right to a life estate. By choosing to just separate and allow his marriage to remain intact, the law gives her the right to either a life estate or a half interest in the home (if she elects that within 6 months of his death), regardless of how long they were separated and what his will says (you can't disinherit a spouse, just be writing a will). She is entitle to more than just an interest in the home. She has elective share rights and other rights to other estate assets, but you'll need to sit down with an attorney and review the estate and non-estate assets to determine what else she may be entitled to. If he didn't remove her from life insurance, she'll probably be entitled to at least a portion of those policies as well. This is just one example. See an attorney soon. Good luck.
A surviving spouse (which she qualifies as since they never divorced) has legal entitlements under the Florida Statutes. They include an elective share (30%) of the estate assets, family allowance and interest in Homestead real property. She can elect either a "life estate" interest in the home or an undivided one-half (1/2) interest in it. She can and will succeed if they were never married.
It sounds like your brother's house was his homestead. A surviving spouse has an absolute right to an interest in the deceased spouse's homestead property (absent a written waiver of some kind - e.g., a prenuptial or postnuptial agreement). One possible interest is a life estate - meaning she can live in or use the property as she sees fit until she dies, at which time it will be distributed according to his will. If this is not what your brother would have wanted, he should have done something about it during his lifetime.
Unfortunately, she will likely succeed. Under Florida's Homestead laws the homestead may not be devised if the owner is survived by a spouse or minor children. If the owner is survived by a spouse and no minor children he may only devise the homestead to the spouse in fee simple. However, obviously, your brother did not do that. The homestead can only be devised as the owner chooses if there is no spouse or minor children of the owner. If the decedent (owner) is survived by a spouse and one or more descendants, the spouse takes a life estate in the property, with a vested remainder in the descendants surviving at the time of the decedent's death, per stirpes. In English, this means that in this situation, because she was his spouse, she will take a life estate in the property until she passes away and then your brothers descendants will get the property. Alternatively, she can elect to take an undivided one-half interest in the property as a tenant in common with the remaining descendants of your brother taking the other undivided one-half interest. In English, this means that she and your brother descendants will own the property together with no rights of survivorship. No rights of surviviorship, in short, would mean that when she passed away her one half interest in the property would pass through her estate and not go directly back to your family (your brothers descendants). I am assuming you would not want this. If you are interested in keeping the property in the family then you should contact an attorney to assist you and provide options for how to move forward. You can contact an attorney that has provided an answer on this post or use the search option on this website. Hope this helps. Good luck.
My collegues are correct, if they were never divorced she has the right to either a life estate in the homestead property or a 1/2 interest in the home if she makes such an election within 6 months of his death. Merely for speculation purposes, I do not know if a compelling or winnable argument could be made that the statute giving her those rights was to protect a widow from losing her home following the death of a husband and that since it had not been her homestead for over 10 years she was losing nothing. In any event she would be eligible to receive an elective share of everything in his name. Perhaps the better idea would be to see if you all could buy her out of her life estate interest to get her to just move on.
