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Florida Homestead & Joint Tenants ROS 100%

Discussion in 'Joint Ownership' started by James21, Feb 23, 2019.

  1. James21

    James21 Law Topic Starter New Member

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    My wife is terminally ill and has an 7 year old son. I am not the biological father. I owned my home before we married. Our concern is when she passes away the biological father will come after my home. My wife does not want anything left to the father who will get custody (they do not get along). My home is homestead property. My wife name is currently not on the deed or mortgage.

    Is the biological father of a minor child upon my wife passing away entitled to any portion of my home? Thank you in advance.
     
  2. army judge

    army judge Super Moderator

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    No, your home has nothing to do with the passing of your spouse.

    Her former husband has no legal claim to a home you owned prior to marrying your spouse.

    I wish your family well.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    Then she'd better write a will, leaving everything to you, lest he make a claim on personal property, vehicles, bank and investment accounts, etc. Vehicles should be owned jointly, preferable with the word "or" between the names, or in your name only. Bank and investment accounts should either be joint or have you named as beneficiary.

    Your house may be safe but there is still a bit of estate planning that she needs to do if she wants to make sure her ex doesn't stick is fingers in your pie on behalf of the child.

    She should also arrange some sort of inheritance for the child with you as custodian of the account so you can make sure the money goes for the child's needs and not to the father.
     
  4. zddoodah

    zddoodah Well-Known Member

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    Huh? What possible basis do you think he might have to do this?

    No, and I really cannot conceive why this might be a concern.

    Agree. Under Florida law, if a person dies without a will and is survived by a spouse and at least one descendant who is not also a descendant of the surviving spouse, the estate gets divided between the surviving spouse and descendant(s).
     
  5. James21

    James21 Law Topic Starter New Member

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    My friend wants to buy into my homestead home for 90K and be my roommate. The home would be both our primary residence. We would then own the home free and clear. Neither of us are married. However my friend has a minor child who would also be living in the home.

    My friend has cancer so my concern is upon death the minor child of my friend (or maybe at some point in time the adult child) would have a right to my home. We were told joint tenants with right of survivorship 100% should solve my concern. My friend has cancer and the minor child would be going to a not nice dad as the legal guardian.

    The goal we are both looking for is for me/or my friend to own 100% of the home upon death and keep it homestead if possible. We don't want anyone to have rights to the home including children upon death. The child is well taken care of through life insurance.

    Is there a way to keep the homestead and upon either of our deaths 100% of the home gets transferred only to the other owner? Any other help would be greatly appreciated. There would be 2 total owners. My friend and I at the time of transaction. Thank you in advance.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    Interesting. In February you wrote:

    Is my home in danger of probate?

    Did you get divorced since then?

    Now you have a "friend" with cancer and a minor child?

    Please understand that if you don't provide accurate information here, the answers you get will be useless.
     
  7. James21

    James21 Law Topic Starter New Member

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    No divorce. She was my fiancé and I called her wife out of habit. We are currently friends. No marriage in the future as there is not much future for marriage with the diagnosis. It was a decision we made together. Thank you.
     
  8. adjusterjack

    adjusterjack Super Moderator

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    Then you will have to execute a new deed transferring ownership from you to you and your partner, specifying joint tenants with right of survivorship:

    Florida has an unlimited homestead exemption from creditors if that's what you mean.

    I suggest you consult an estate planning lawyer and make sure you both have wills as well.
     
  9. army judge

    army judge Super Moderator

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    Yes, that would NOT be illegal.

    However, it is ill advised to do so.

    Why?

    Yes, be smart and don't sell any portion of the home you occupy to anyone.

    I could BORE you with horror story after horror story about people who did exactly what you're thinking about, and regretted it.

    In fact, even allowing someone to share your home with you is a risky proposition.

    Your home is YOUR safe place.

    Your home is NOT a Hilton Garden Inn, or a Motel 6.

    The moment you do what you're posting about, things will soon go south.

    Two adults rarely can live in the same space without disputes.

    Your ill friend should buy her own home, not a piece of yours.

    Throw in the child with a deathly ill parent, when you don't have one, and you'll become a caretaker and babysitter.

    You'll cook, clean, slave away and will rue the day you even thought about this.
     
  10. zddoodah

    zddoodah Well-Known Member

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    Sigh...

    Is there anything else in any of your posts that isn't true?

    Anyway, that this woman is not your wife makes your concern about her child's father being able to do something with respect to your home even more baffling.

    Probably true, but who told you this? Did the person also tell you about the other concerns that this might create?

    I'm curious why you want your terminally ill former(?) fiancée (a fiancé is a MAN you intend to marry; a fiancée is a WOMAN you intend to marry) to co-own your home with you if you're going to get the ownership interest back when she dies. Alternatively, if she's really terminally ill, why does she want to blow $90k for something that will effectively be of almost no benefit to her.

    Another thing to keep in mind: If you die before she does and then she dies while the child is still a minor, the child will inherit the home, which, as a practical matter, means that the child's father will get the home.

    I strongly suggest you consult with a local attorney about what you're contemplating and discuss whether putting the home into a trust might not be better for you.
     
  11. Tax Counsel

    Tax Counsel Active Member

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    I fixed your initial post above to read as it should based on the revised facts you gave us. You are not married to her and given her terminal condition do not plan to get married. The home is owned solely by you and you are the only debtor on the mortgage. Under those facts, if you just leave the home solely in your name then the father of her child certainly would have no claim to the house, nor would her child.

    Transferring the home now to joint ownership with rights of survivorship (JTWROS) would not be a good idea. Army Judge did not provide the reasons why, but he's right on that.

    First, a transfer of a part interest in the home to your fiancée is almost certainly going to trigger the due on transfer clause of your mortgage, allowing the mortgage lender to call the entire loan due immediately. If that happens and you can't pay the mortgage, you could lose the home through foreclosure. The federal law that protects homes from due on transfer clauses in certain situations would not apply to this transfer.

    Second, you are now giving her an interest in your home. That might prove to be a problem down the road, especially if somehow she does survive longer than you think and you split up or whatever. She could walk away with half the value of a house that you bought and have been paying for.

    The $90,000 she has she can give to you at her death and her son's father would have no claim to that. She could do that by parking the money in bank account and naming you as the beneficiary of the account. That would achieve the same thing you propose to do and not trigger the due on transfer problem or the problem of her ending up as a co-owner of the place.

    If at some point you do get married, then things change a bit. But until then, I wouldn't recommend having her buy into a share of the home you right now own all by yourself.
     
  12. James21

    James21 Law Topic Starter New Member

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    The home would be free and clear from any mortgage so it would not trigger any due on sales clause. Hypothetically speaking, army judge does make valid points and that certainly can give someone cold feet.

    Anyways, what are some of the consequences of joint tenants wros?

    My guess is as joint tenant with ros the 1/2 interest in the home can be sold or transferred to a stranger or anyone #1
    If someone owns half my home they could rent their interest to someone and i could have an unwanted roommate (im guessing) #2

    If anyone wants to do a final chime in. If not, that is ok everyone will learn more as this is a new category grows in the forum. This has already helped a lot. I do appreciate everyone's time and respect the forum. I appreciate what you are all are doing on this website. Thank you again for your time.
     
  13. zddoodah

    zddoodah Well-Known Member

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    I already explained one possibility and don't care to invent a bunch of hypotheticals.

    Yup.
     
  14. Tax Counsel

    Tax Counsel Active Member

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    She would be an owner of the home. She would get all the rights that go with that. She could sell her half interest to some stranger, if she can find a willing buyer. She may mortgage her half interest, if she can find a willing lender. She may lease her interest to someone else, making you a roommate with someone you may not know. She can live there for as long as she wants, so if you have a falling out later you could not kick her out. All the things an owner may do, she may do without your agreement or consent. She could remodel the home in some way you don't like. Think of all the things you can do as an owner. She'll be able to do all those things, too. You are giving up what is solely your home and all the advantages that go with that if you give her half the home.
     

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