Florida Defective Wills: Poor Drafting or Intentional?


The Florida Constitution protects one's Homestead from creditors. One provision that is often misunderstood is a devise of a homestead in a will when there are minor children in the family. In some cases a two people are getting married and one has a home and a minor child. The spouse may draft a will that states that the home goes to the future husband, but what happens if the spouse dies before the child reaches the age of 18?

Under the Florida Homestead Protections, the house does not pass as the will states, but the homestead goes to the minor child with a life estate going to the surviving spouse. Sometimes this appears to be an intentional mistake in a will to appease a future spouse but the clause does little to provide a fee simple ownership the the decedent's homestead.

If you are getting married or your spouse had a home prior to your marriage that is now your Homestead, be careful that any attempted devise of the home when there are minor children will create a default condition establishing a life estate for the surviving spouse and remainder for the children even if one is a minor.

To have your will reviewed for invalid clauses or to update a Florida will Contact a Florida Estate Planning Lawyer

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© David Goldman, Apple Law Firm PLLC | Attorney Advertising

Written by:


Apple Law Firm PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.