If separated, can my spouse inherit the property I buy before we are divorced? Well one of the first things we need to address is Florida doesn’t have legal separation. I believe that’s something comes from New York where they may have legal separation but we don’t have that. In Florida either you’re married or you’re single, one of the two, you’re not anywhere in between as far as your rights are concerned.
So we get to the question as to whether or not your spouse can inherit your property. Under our Florida law as is that you can leave your property to whomever you want under your will and you can exclude your spouse. Your spouse then has the right to file what they call an elective share wherein they get I believe it’s 30 percent of everything you own no matter how you hold it, whether it be in a revocable trust or wherever. So yes, you can buy property, you can leave it to whoever you want to.
Now if you happen to buy a home and you’re separated and you not going to be able get a mortgage when you buy a home in Florida if you’re married without the joint of your spouse because the Florida constitution requires that a spouse join in any conveyance or any mortgage as far as your homestead is concerned. But let’s say you say, “Well that’s not a problem. I pay cash for it.” Well that’s, it’s not a problem until you get ready to sell it during your lifetime while you’re still alive, and then you turn around and have to have your spouse join in the deed in order to be able to sell it. So if it’s your homestead here in Florida it’s not so much a problem buying it but when you get ready to get rid of it or try and mortgage it, you’ve got problems as far as needing your estranged spouse to sign.
Also if you are still married, even though you’re separated and you own your homestead here in Florida and you pass away, the spouse has a right to a life of state in your homestead property or can elect to take a half interest provided that you don’t have any minor children. If you have minor children then it’s automatic life estate. So there’s any number of complications as far as purchasing property. And so my suggestion is if you’re separated, well you need to go ahead and take care of getting divorced and clean up your property rights or enter into a marital settlement agreement with your separated spouse whereby they’re waiving any rights in this and that’s another way to handle these problems.
So if you have any questions on that, well give me a call at 727-847-2288.