Is this claim of "Life Estate" valid?

[johnhold]

Jurisdiction

Florida

My brother, who lived in Lee County Florida, passed away recently. He owned a home free and clear. After acquiring the home he got married. She was never put on the deed. After 2 years she left him. That was 10 years ago and there was no contact for that entire time. My brother had made a will before he died and left his house to his 5 siblings. He had no children. He specifically said in the will that his wife (they never got a divorce) was to get nothing. She has come forward now and is trying to claim a life estate status on the home. Can she succeed? This was our parents home and we are all greatly troubled by it as it was the last thing our brother would want.

 

[army judge]

My brother, who lived in Lee County Florida, passed away recently. He owned a home free and clear. After acquiring the home he got married. She was never put on the deed. After 2 years she left him. That was 10 years ago and there was no contact for that entire time. My brother had made a will before he died and left his house to his 5 siblings. He had no children. He specifically said in the will that his wife (they never got a divorce) was to get nothing. She has come forward now and is trying to claim a life estate status on the home. Can she succeed? This was our parents home and we are all greatly troubled by it as it was the last thing our brother would want.

I suggest the concerned siblings pool their funds and seek REAL legal advice from a FLORIDA licensed real estate attorney.

Have the lawyer open probate, which will also expose death buzzards.

In the interim, unless your brother created a conveyance none of you know about, she possesses no "life estate" just because she asserts one.

But, be smart, if you wish to avoid a long, protracted, expensive legal dispute.

Contact a lawyer, start the legal action(s) necessary (which won't just be go away) to send this interloper packing.

Death buzzards are reluctant to be shooed away, or scared away, they must be quickly, lawfully, and harshly dealt with.

Time is of the essence, don't tarry, lest the death buzzard establish a foot hold and initiate colonizing.

 

[ElleMD]

If he has a valid will, that controls. She can try challenging the will, but just based on what you shared, there is not a high chance of success.

 

[johnhold]

I suggest the concerned siblings pool their funds and seek REAL legal advice from a FLORIDA licensed real estate attorney.

Have the lawyer open probate, which will also expose death buzzards.

In the interim, unless your brother created a conveyance none of you know about, she possesses no "life estate" just because she asserts one.

But, be smart, if you wish to avoid a long, protracted, expensive legal dispute.

Contact a lawyer, start the legal action(s) necessary (which won't just be go away) to send this interloper packing.

Death buzzards are reluctant to be shooed away, or scared away, they must be quickly, lawfully, and harshly dealt with.

Time is of the essence, don't tarry, lest the death buzzard establish a foot hold and initiate colonizing.

Thanks very much for your response. It gives us a little hope. Unfortunately, our lawyer thinks she has the law on her side. Not sure what to tell him.

 

[army judge]

Thanks very much for your response. It gives us a little hope. Unfortunately, our lawyer thinks she has the law on her side. Not sure what to tell him.

All you can do is open probate, read the will, and await any challenges.
They were married for ten years, so this might be what she's claiming:
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Homestead Rights

HOMESTEAD RIGHTS. Article X Section 4(c) of the Florida Constitution limits who can receive Homestead property upon the death of an owner if he or she is survived by a spouse or a minor child. A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Florida.
DEADLINE TO FILE FOR HOMESTEAD ELECTION AS TENANT IN COMMON. If a surviving spouse is left a life estate, he or she has six months from the decedent's date of death to make an election under Florida Statutes Section 723.401 to take a one-half interest in the Homestead as a tenant in common. This is a very important election, because in Florida, owning a life estate can often be more costly to maintain than the benefit is worth, given the high cost of ownership of real estate in Florida as a result of property taxes, insurance, and homeowner association dues. By making the election a spouse can force the sale of the property and receive 50% of the sales proceeds. Homestead rights are protected by the Florida Constitution and are in addition to any elective share, family allowance, or exempt property rights discussed below. No notice of the tenant in common election right needs to be given to the surviving spouse, making this six month deadline easy to miss.
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Another right she may assert:
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Elective Share or Election Against a Will

ELECTIVE SHARE. Under Florida probate law, a Surviving Spouse has a right to a 30% elective share of the estate of the deceased spouse valued as of the date of death. Florida Statutes Section 732.2035 is an all encompassing statute that includes in the elective estate the following items: Probate estate, pay on death (POD), transfer on death and similar accounts; jointly owned accounts or securities based on the amount the decedent could withdraw, jointly owned real estate, ½ of tenants by the entirety property, certain revocable transfers, including revocable living trusts, retained life estates and income interests, most retirement benefits, cash value of life insurance immediately prior to the death of the decedent, most gifts one year prior to death, and property transferred in satisfaction of the elective share prior to death. While debts of the decedent reduce the elective share, expenses of administration such as attorney fees do not reduce the value of the elective share. The elective share can also receive interest from the estate in some circumstances. The value of the elective share is initially satisfied from assets that have already passed to the surviving spouse, next from the probate estate, and finally from other assets included in the elective estate. For a more detailed calculation of the Florida Elective Share, go here.
DEADLINE FOR FILING FOR THE ELECTIVE SHARE. The elective share election must be made within the earlier of 6 months from the service of a Notice of Administration on the surviving spouse or, if no Notice of Administration is given, within two years of the date of death of the decedent pursuant to Florida Statutes Section 732.2135; Florida Probate Rule 5.360. If a temporary election is made it must be withdrawn within 8 months from the decedent's date of death or prior to the order for contribution. The personal representative shall serve all parties within 20 days of receipt of an Election to Take Elective Share along with a copy of the Election. An interested party then has 20 days of receipt of the Formal Notice to object.
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I suggest you see another lawyer, ASAP.
I'm not saying anything against YOUR lawyer.
I am saying, sometimes another lawyer sees a BROADER view, and has MORE vision.

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If she is awarded the life estate, she has duties to the estate.
She can't live their for FREE.
She must keep the property in good repair, at her expense, as well as keep the taxes up to date.
Should her claim for the Life Estate prevail, the remaindermen (the siblings or your issue) must ensure these protections are added to the Life estate, and that remedies exist is she fails.

 

[army judge]

A couple more thoughts, OP.
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Your brother really made a mess of things for his heirs by not divorcing his estranged spouse, and she's clever enough to know when to return and appear as a death buzzard.
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Requirement to File a Known Will

FILE A KNOWN WILL. A known will must be filed with the court within 10 days of the decedent's death. Florida Statutes section 732.901. A surviving spouse also has a right to a copy of the will.

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Court Documents

COURT DOCUMENTS. A surviving spouse is entitled to all the documents filed with the court in their spouse's probate proceedings. This includes the Petition for Administration, Letters of Administration, Notice to Creditors, Petition for Administration, Inventory, Final Accounting, Order for Discharge, and any and all other pleadings regarding the estate.
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Community Property

COMMUNITY PROPERTY. A decedent's surviving spouse is entitled to one-half of all community property acquired during the marriage, and this is not an elective estate, and is not subject to testamentary distribution under the decedent's estate. While Florida does not recognize community property as a property ownership form for its residents, it will respect community property acquired while such person was a resident of a community property state and continually held as community property.
DEADLINE FOR FILING FOR COMMUNITY PROPERTY. Florida Statutes sections 732.221 and 732.233 allow a surviving spouse or a beneficiary to perfect title in Community Property by order of the Probate Court or by an instrument executed by the personal representative or the beneficiaries with approval by the Probate Court. The personal representative has no requirement to search for community property, unless the surviving spouse, beneficiary or a creditor files a written demand to the personal representative within three months of the filing of a Notice of Administration on the surviving spouse or such beneficiary. A creditor has three months from first publication of the notice to creditors to make a written demand.

Social Security Death Benefit

SOCIAL SECURITY DEATH BENEFIT. Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
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SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE. It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.

 

[johnhold]

A couple more thoughts, OP.
..
..
Your brother really made a mess of things for his heirs by not divorcing his estranged spouse, and she's clever enough to know when to return and appear as a death buzzard.
...
...
Requirement to File a Known Will

FILE A KNOWN WILL. A known will must be filed with the court within 10 days of the decedent's death. Florida Statutes section 732.901. A surviving spouse also has a right to a copy of the will.

...
...
Court Documents

COURT DOCUMENTS. A surviving spouse is entitled to all the documents filed with the court in their spouse's probate proceedings. This includes the Petition for Administration, Letters of Administration, Notice to Creditors, Petition for Administration, Inventory, Final Accounting, Order for Discharge, and any and all other pleadings regarding the estate.
...
...
Community Property

COMMUNITY PROPERTY. A decedent's surviving spouse is entitled to one-half of all community property acquired during the marriage, and this is not an elective estate, and is not subject to testamentary distribution under the decedent's estate. While Florida does not recognize community property as a property ownership form for its residents, it will respect community property acquired while such person was a resident of a community property state and continually held as community property.
DEADLINE FOR FILING FOR COMMUNITY PROPERTY. Florida Statutes sections 732.221 and 732.233 allow a surviving spouse or a beneficiary to perfect title in Community Property by order of the Probate Court or by an instrument executed by the personal representative or the beneficiaries with approval by the Probate Court. The personal representative has no requirement to search for community property, unless the surviving spouse, beneficiary or a creditor files a written demand to the personal representative within three months of the filing of a Notice of Administration on the surviving spouse or such beneficiary. A creditor has three months from first publication of the notice to creditors to make a written demand.

Social Security Death Benefit

SOCIAL SECURITY DEATH BENEFIT. Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
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SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE. It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.

Again, Thanks very much for your time and efforts. We have filed the will with the state. She, subsequently, filled first for the elective share and then for the life estate. Our lawyer did state the laws on her side but did say that " it's not over, we'll fight this as best we can". To add insult to injury, we, his siblings, have already paid for his funeral and some expenses, house bills, to get the house ready to sell. In fact the home was sold 2 days after listing it. Since then though we had to but it all on hold as she came forward with her claims. We were of course expecting to get repaid from the sale of the home as the rest of the estate has no value but... now we'll have to wait and see what happens I guess.
Thanks again.

 

[army judge]

Again, Thanks very much for your time and efforts. We have filed the will with the state. She, subsequently, filled first for the elective share and then for the life estate. Our lawyer did state the laws on her side but did say that " it's not over, we'll fight this as best we can". To add insult to injury, we, his siblings, have already paid for his funeral and some expenses, house bills, to get the house ready to sell. In fact the home was sold 2 days after listing it. Since then though we had to but it all on hold as she came forward with her claims. We were of course expecting to get repaid from the sale of the home as the rest of the estate has no value but... now we'll have to wait and see what happens I guess.
Thanks again.

My rule of thumb on EVERYTHING:
If something COSTS me money, I don't get involved.
If it could make me money, I weigh if the money is worth the effort it requires me to expend to chase a buck.
In your case, if she gets her life estate, you'll be supporting another child.
She won't pay taxes, or keep the house up.
You'll do it, because you expect it'll sell one day.
If anything presents a troubled beginning, walk away.
You don't want the house to keep it in the family, so why bother?
You might make a few dollars on it, but its costing you money before you make money.

I'm risk averse, extremely risk averse.
I bet on sure winners, as you've come to see, your winner has become a dark horse because a death buzzard appeared.

My condolences upon your loss, I do wish you success, a very Merry Christmas, along with a prosperous 2017.