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Law change for ‘tenants in common’

May 20, 2011

Q: My father died several years ago and my mother is now married to a wonderful man who is older than she is. Her name isn't on the title of their house and I want to be sure that she will be able to live there should he die.

Someone told me the homestead law had changed and she would have to move out if her name isn't on the title to the house. Is that right?

A: In the past, a surviving spouse was entitled to live in the couple's house for the rest of that spouse's life whether on the title or not. This is called a life estate. This caused problems when the home was left in a will to someone else, let's say the children of one of the spouses from a previous marriage. Problems really arose when the surviving spouse didn't have the money to keep the house up to the standards of the heirs.

This will change on Oct. 1. The surviving spouse will be able to choose to live in the home in a life estate or to become a 50 percent owner of the property, with the heirs owning the remaining 50 percent.

This shared ownership is known as being "tenants in common." The new law gives the spouse up to six months from the date of the spouse's death to make the decision. Once the decision is made, it cannot be changed. The downside of this is that the survivor or the deceased spouse's children may be able to force the sale of the homestead property even if the other owner does not want to sell. If sold, the proceeds are split evenly.

The new arrangement can provide relief if the surviving spouse is without funds but it can also be a challenge if the surviving spouse chooses ownership but dies before the property is sold.

If the surviving spouse who dies before the property is sold leaves their property to children from a previous marriage, the children of the first spouse to die would be in a partnership with the children of the second spouse to die.

Pre-nuptial and post-nuptial agreement can waive rights to property in a second marriage. This would be a good time to seek the advice of an attorney who understands real estate, trusts, and the homestead law.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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