What to do if my husband will not make a Will for me?

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What to do if my husband will not make a Will for me?

We have been married 11 years. I moved into his house when we married. He has 2 grown children who are married and live in states away from us. Both are in conflict for control with their dad. My husband tries to tell me that state law gives the spouse everything. I would need to have this told to me definitively. I still think a Will is the way to go.

Asked on December 22, 2012 under Estate Planning, Florida

Answers:

Victor Waid / Law Office of Victor Waid

Answered 8 years ago | Contributor

You are right a will is one way to go; but a better alternative is for your husband to set up a trust, put the property in the trust, and name you as the beneficiary of the trust, with giving nominal sums to the children, to show that he thought about them and provided for them even though minimally, or the last way is to have your husband execute a joint tnancy deed from himself to himself and you, so if he dies before you, then you survive to his interest and if you die before him then your share reverts back to him.

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

Florida has complicated laws governing homestead property and this going to be an expensive mess if your husband does not do something to clear it up.  I assume you and your husband live in the house.  I also assume you claim this as homestead property (it is homestead property whether you claim it or not).  Whatever your husband does, you are entitled to a life estate in the homestead property according to the Florida Constitution.  Your husband can do nothing to take this away from you.  If your husband dies without a will, without preparing a new deed listing you as an owner, and without putting title to the home in a trust that gives you at least a life estate in the property, then you get to live in the house for your lifetime.

Life estates are not easy to manage.  As a "life tenant," you are required to pay any mortgages, taxes, maintenance, insurance, and upkeep.  If you don't pay this, the children (who will be the "remaindermen"), have to sue you either to make you pay it or take title away from you.  This is an adversarial action and very expensive.  As a life tenant, you cannot sell the property or mortgage it without the "remaindermen" signing off on it.  As remaindermen, the children have no right to anything until you have died. 

I doubt that anyone wants this mess since no one wins - not your husband, not his children, not you.  I suggest that your husband consult a Florida lawyer about the best course.

In addition to the homestead laws, Florida law gives a spouse rights to portions of her husband's estate.  If he dies without a will and since the children are not your children, you are entitled to one-half of your husband's probate estate.  Even if he prepares a will or a trust or designates his children as beneficiaries on bank accounts, retirement accounts, or insurance policies, you are entitled to take 30% of all of that -- this is called the spouse's "elective share."  Figuring this out and fighting about it in court will take a long time and be very expensive.

My point in listing this is to emphasize the importance of preparing a "life plan."  I have outlined some of the problems that should be avoided with an "estate plan."  However, there are other problems that can arise during life when people do not prepare essential legal documents.

If you or your husband are disabled or incapcitated from illness or injury, someone needs the ability to handle financial and personal affairs.  I strongly recommend that you and your husband prepare powers of attorney.  If you do not do this, you could end up in a guardianship proceeding where the incapacitated person will lose all of his or her rights and everything will be subject to court control as long as the person lives.  Did I mention this is expensive?  A guardianship also limits what can be done with a person's assets.  Without a power of attorney, you or your husband may be forced to spend everything you own (except your house & car) for nursing home care.  With a power of attorney, there are many perfectly legal and appropriate transfers that can be done to preserve assets and still qualify for Medicaid benefits in a nursing home.  It is important to preserve this flexibility, and a power of attorney is the way to do it.

A Power of Attorney is not the only "life plan" document needed.  A Living Will is very important unless the person wants every heroic measure taken.  When spouses and children disagree, making medical decisions can be very difficult without a Living Will.  Remember Terry Schiavo?  That happened in Florida.

As the other lawyer mentioned, there are additional documents that can make life planning much easier.  A living trust is one such document.  A deed is another.  Placing title to bank accounts and other assets in a certain way is important, and "pay on death" or "transfer on death" accounts are another option.  It is important to speak with a knowledgeable lawyer to understand these options and prepare a life plan that works for everyone and makes life circumstances easy to manage instead of difficult, upsetting, and expensive.  It is far, far cheaper to prepare a legal life plan than to ask the courts to sort things out or resolve disagreements.

Let me add one further note -- giving assets away would be the worst thing for you or your husband to do.  If either of you needed a nursing home within five years of giving assets away, you may be denied Medicaid benefits because of the gift.  Please consult an elder law attorney in your area to help you create an appropriate life plan. 


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