Broward Injury Lawyer Blog
Many people may have mixed emotions when they receive word about the death of an ex-spouse, but they generally don’t expect to end up embroiled in probate. This can occur, though, when there are loose ends on finances, assets and property. Ideally, Miami probate lawyers know these matters would be cleanly settled years earlier in the divorce agreement, but sometimes, depending on the circumstances, it’s not possible for former spouses to entirely extricate themselves financially when the marriage dissolves. 
This was the case before a Florida probate court and later Florida’s Third District Court of Appeals, which was tasked settling issues that arose when a former wife and the estate of her recently-deceased (but long-time divorced) ex-husband disputed financial claims and rights to a residence in which they had both been long-time co-tenants. Both the estate and surviving ex-wife consulted with Miami probate lawyers to help them duke out the details.
Per court records, here’s what happened:
More than four decades ago, when the pair were still married, they purchased a property in Miami-Dade County and resided there together as husband-and-wife. Then, in 1986, the husband moved out of the residence, and the wife continued to live there. The marriage wasn’t legally dissolved until 10 years later, in 1996. The husband never moved back into the home, though he did occasionally come by for mail. But otherwise from that date until husband’s death in January 2010 in the Haitian earthquake, the exes held title as “tenants in common,” each having a 50 percent undivided interest in the property, though wife had exclusive occupancy. (In 2005 the wife’s mother also moved in, becoming a second occupant.)
Miami Probate Lawyers Ask: Does Co-Tenant Ex-Wife Owe Decedent’s Daughter Rent?
Documents filed by decedent’s daughter as personal representative of her father’s estate filed a motion requiring the former wife to pay rent. The ex-wife filed her own motion, asking the court to determine whether she was entitled to any offsets for money she’d already paid toward the mortgage, taxes and maintenance of the property. Fair market value of the property was determined the property had a fair market value of $160,000 and was held free and clear of any mortgage. The ex-wife didn’t dispute this, but did point out she’d spent nearly $315,000 on the property since the start of her exclusive occupancy – with no reimbursement from her ex. This, she said, entitled her to a set-off of half that money, or $157,000 – almost the full value of the home, against any rent she owed after her husband’s death and also against her own 50 percent interest in the place.
Miami probate lawyers argued the case, and the court held the reasonable rental value of the house was $2,100 monthly, the estate was entitled to one half that month, effective February 2010, and judgment for the estate’s share of past-due rent based on that amount (roughly $16,000) was due in 45 days, or else that would also count toward her offset (which it was).
The estate appealed.
Appellate Court Reverses Rental Payment Ruling, Stipulates Payment to Estate Possible in Event of Future Sale
It was noted that prior to decedent’s death, his former wife had exclusive possession of the home and no requirement to pay rent. The court did find that former wife’s arguments regarding an entitlement to a set-off in this Florida probate litigation were tough to address. The court pointed out that unless the final divorce agreement expressly imposed on the ex-spouse in possession of the property the obligation to pay rent without receiving any set-off credit in return (and there is a just legal basis for doing so), the right to credit for those payments made is one that is established by law. Property expenses can be included in this set-off amount, including those made for interests, insurance and taxes. It was well-established that the credits that had been presented likely exceed the agreed-upon $80,000 interest held by the estate. Further, wife presented evidence that she alone was the one to pay the mortgage from 1986 until several years ago, when the home was paid off, and that she’d spent a substantial amount in maintaining the property.
That said, the court indicated there could be some entitlement credits made in the future, if and when the home is ever sold. However, the court declined to find – as decedent’s daughter argued – that the former wife’s claims to credits from her ex-husband’s estate were extinguished by statute of limitations.
Thus, the appellate court reversed the order compelling the ex-wife to pay rent to the estate. To do so, the court held, would be to leave this woman and her elderly mother of any equity in the home before it could be realized.
This case reveals why if you still have property with an ex-spouse, you too may need to consult one of our Miami probate lawyers to protect your interests, even if you are long-divorced.
Call Miami Probate Lawyers at Richard Ansara Law Firm at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Joseph v. In re: Estate of Gerard Joseph, March 21, 2012, Fla. 3rd District Court of Appeal
More Blog Entries:
Create a Florida Living Trust to Make Life Easier for Family After You Die, Oct. 15, 2018, Miami Probate Lawyers Blog
