My husband passed without a will and he owned a property that was not our homestead but we used it for rental income.

Question

I, as the surviving spouse want to sell this property (FL) and need to probate it because I am not on the deed, only my husband. He and I had 2 children together who are minors and he had one adult child from a previous relationship as do I. I was advised that upon the sale I am entitled to 50% of the proceeds and his adult child from the previous relationship the other 50%. Why wouldn’t our children together have any ownership?

Christin Coleman Gallardo · Answer

That's not correct.  
You are entitled to 50% of the estate per 732.102.  
Per 732.103, The remaining 50% of the estate is shared by your husband's three children equally, so they each are entitled to approximately 16.6%

Evelyn Suero · Answer

In the state of Florida, if the decedent dies without a will and is the parent of children who were not also the children of the surviving spouse, then the surviving spouse is entitled to one-half of the estate and all of the children (the descendants of the decedent) would share the other half. You may need to speak with a probate attorney to assist you with this process.

Lauren Nagel Richardson · Answer

I am very sorry for your loss. Those attorney answering this question before me are correct. The children's 50% goes to all three children. Because your children are minors, if you were appointed the personal representative (spouse has preference of appointment when there is no will) and you sold the property inside the estate, then if your children's shares totaled more than $15,000, there is also the issue of establishing guardianships of property for each of them. Our office handles probate administration statewide. You are welcome to call me for a free phone consultation to discuss what would be involved in this estate administration.

Q: My husband passed without a will and he owned a property that was not our homestead but we used it for rental income.