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Legal advice needed to settle estate issue

By ERIC FEICHTHALER - Real Estate Law | Dec 2, 2021

Eric Feichthaler

Dear Mr. Feichthaler:

I own a home in Cape Coral, and I have two adult children from a previous marriage. I also am the parent of a minor child with my partner, but I do not have any custodial rights with the child.

I have written in my will that my home should pass to my two adult children. Is this enough to get them the home? The mother of the minor child wants nothing to do with me, and is not expecting any support.

— Steven C.

Dear Steven:

Florida’s Homestead protections are great in so many ways. It protects the home from unsecured creditors and provides for property tax savings. However, it also protects the rights of certain individuals, namely, spouses and minor children. The goal of the Florida law is to not cause a situation where a widow, widower or minor children are rendered homeless due to the passing of the owner of the property. With the facts you have provided, and the law provides that homestead passes to minor children, the direction in your will would be ineffective. If you died, your minor child would be entitled to the home. Your adult children would not have a right to the property. However, if you died after your children reached the age of majority, your will would like control the distribution of the home.

Florida Homestead laws are complicated, and often trip up many people, even attorneys. There may be other ways to accomplish your goals and not run afoul of the homestead protections of Florida’s constitution, but legal advice should be sought prior to attempting to make those plans.

Eric P. Feichthaler has lived in Cape Coral for over 33 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.