Father with Second wife

What is the name of your state (only U.S. law)? Florida

My father wants to get his affairs in order because he has cancer. He would like to be able to leave his house to me, my two sisters and his wife (four equal shares). However, he wants a provision that his wife is to be able to continue to live in the house until her death. His lawyer told him that he cannot have his will drawn up this way and that his wife would receive the entire house and his children would receive nothing. My thoughts were that he could set up a trust to place the house in with each of the 4 of us being an equal beneficiary of this trust. The trust agreement could stipulate that the house was not to be sold/liquidated until the death of his wife or a mutually agreed upon date of the four beneficiaries. Do you know if an agreement of this type would work? If not, do you have other suggestions on how my father can proceed?What is the name of your state (only U.S. law)?

If pa wants to do that, then he needs to hire a different lawyer; preferably one who knows what he's doing.

His lawyer told him that he cannot have his will drawn up this way and that his wife would receive the entire house and his children would receive nothing.

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This is true if his wife is already named on the deed as a joint owner with right of survivorship. She would become the sole owner of the house upon her husband's death. His will cannot give away what is already hers.

ShyCat said:

This is true if his wife is already named on the deed as a joint owner with right of survivorship. She would become the sole owner of the house upon her husband's death. His will cannot give away what is already hers.

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We do not know (at this point) if that is in fact what is going on here.

I do not believe she is already on the deed. He purchased the house before he even knew her and I don't believe he had her added to the deed upon their marriage. I was under the impression that the lawyer told him this because under FL law, spouses had rights of survivorship regardless of who was on the deed. I could be mistaken as I am not a lawyer and am only slightly familiar with FL law. If she is not on the deed, would the trust arrangement be a solution?

Cathy78 said:

I do not believe she is already on the deed. He purchased the house before he even knew her and I don't believe he had her added to the deed upon their marriage. I was under the impression that the lawyer told him this because under FL law, spouses had rights of survivorship regardless of who was on the deed. I could be mistaken as I am not a lawyer and am only slightly familiar with FL law. If she is not on the deed, would the trust arrangement be a solution?

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The Florida Supreme Court has said that any real or personal property owned jointly by a hustand and wife is presumed to be owned as tenants by entireties.

I did find this (and I won't give you the website since I am not sure it is correct).

SO...the thing to do is for kids to hire their own lawyer to get advice on what to do.

Which is why I was asking the forum if they knew if using a trust would be a mechanism to get around this law. Has anyone seen or heard of a similar situation? If I need to hire a lawyer, or my father needs to hire a lawyer to draw up a trust agreement, I'd rather be be well educated before walking into an office and having to pay for billable hours.

Cathy78 said:

Which is why I was asking the forum if they knew if using a trust would be a mechanism to get around this law. Has anyone seen or heard of a similar situation? If I need to hire a lawyer, or my father needs to hire a lawyer to draw up a trust agreement, I'd rather be be well educated before walking into an office and having to pay for billable hours.

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Any mechanism to get around this law would (I strongly suspect) require that the wife have her own independent lawyer and that she be fully apprised of all assets and liabilities of pa before she signed away any rights.

I also strongly suspect that this scenario is rather common in Florida and that with all the elder law attorneys down there, this would be routine.

Stand by to see if any Florida lawyers respond.

I am not a Florida attorney, but I think that Seniorjudge's original reply was correct - check with another attorney.

"...his wife would receive the entire house.." does not sound right. If I recall, in Florida, the surviving spouse would receive a life estate in the residence, which is what your father is proposing in the will anyway.

Surviving spouses get protection. But I am not aware of any state that would give outright owership of the residence to the surviving spouse if it is not owned jointly or there are not provisions in the will to that effect. (Are there any states hwere that would happen?)