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What Happens to Your Exclusive Use and Possession of the Marital Home When Your Former Spouse Remarries and Dies?

A common award in divorces is the temporary exclusive use and possession of the marital home until the youngest minor child turns age eighteen or graduates from high school.  Usually the divorcing spouses must sell the home and split the proceeds when the period of exclusive use and possession ends.  Rarely is any consideration given to what happens if one of the spouses remarries and then dies before the expiration of your temporary exclusive use and possession.

A Florida appellate court considered this situation and its impact on the former wife and the second wife when the former husband died without a will during the former wife’s exclusive use and possession of the parties’ former marital home.  After the divorce, the former husband owned the house as a co-tenant in common with the former wife. Their marital settlement agreement required the home to be sold when the youngest child graduated from high school, unless the former wife bought out the former husband’s interest in the home.

Under Florida law, the deceased former husband’s current wife received a life estate in the home complete with his homestead exemption status. But the second wife was concerned that she had no way to enforce the requirement that the home be sold because of the homestead protection against forced sale.  She also went to the former marital home and demanded entry, claiming that her life estate in the property entitled her to unrestricted access to the home.  The police had to be called to escort her off of the premises.

Fortunately for the former wife, the marital settlement agreement included a provision that made the agreement binding on the parties’ heirs.  Since the marital settlement agreement gave the former wife temporary exclusive use and possession of the home, the appellate court ruled that the second wife had no right of access to the home during that time period. Fortunately for the second wife, despite the homestead status of the home, the marital settlement agreement also required the former wife to ultimately sell the home unless she exercised her option to buy out her former husband’s interest.

This case highlights the importance of having an experienced family law attorney draft any legal agreements in a divorce, particularly a marital settlement agreement. Though it’s not possible to know what your post-divorce future holds, it is possible to plan for future events when drafting legal agreements. Even if you are divorcing without an attorney’s representation, consider hiring an experienced family law attorney to prepare your marital settlement agreement and any other important documents in your divorce.