Does a Non-Owner Spouse Have a Legal Interest in a Florida Homestead? – Asset Protection

A non-owner spouse does have a legal interest in their Florida homestead property. A couple can arrange to have only one of two spouses own the couple’s homestead property.

A married person can maintain a legal homestead in Florida even if one spouse is not on the home’s legal title. The property remains protected from creditors, and the house can qualify for the homestead tax exemption.

A non-owner spouse has their a separate homestead interest in the property even though that spouse’s name is not on the title. An owner-spouse cannot sell, transfer, or mortgage the family homestead without the signature and agreement of a non-owner spouse.

When only one spouse is on the homestead title and the owner spouse dies, the non-owner spouse residing in the home will have, at minimum, a life estate interest in the homestead.

Florida law provides a surviving spouse with an elective share of the deceased spouse’s estate, including the homestead property. The elective share prevents a surviving spouse from being disinherited and ensures they receive a portion of the estate.

If the owner spouse dies, Florida’s homestead laws have specific provisions for inheritance:

1. Surviving Spouse and Minor Children: If the deceased owner is survived by a spouse and minor children, the homestead property cannot be devised (left in a will) to anyone other than the surviving spouse. The spouse receives a life estate in the property, meaning they have the right to live in the home for their lifetime, and the minor children receive the remainder interest (ownership after the spouse’s death).
2. Surviving Spouse Without Minor Children: If there are no minor children, the surviving spouse can choose either a life estate or a one-half interest in the homestead property as tenants in common with the decedent’s descendants (if any).

Waiving Spousal Homestead Rights

A married person can waive their spousal homestead rights and interests. Homestead right waivers are frequently included in pre-nuptial agreements.

About the Author

I’m an attorney who specializes in asset protection planning. I graduated with honors from Emory University Law School and have been practicing law for almost 15 years.

I have helped thousands of clients protect their assets from creditors. Before private practice, I represented the federal government while working for the IRS Office of Chief Counsel.