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Despite good intentions, land owner could lose share of property

By Staff | Dec 9, 2022

Eric P. Feichthaler

Dear Mr. Feichthaler:

I am a single woman, and I own a lot in Cape Coral that I placed in my trust. I had a partner I have been seeing for over 10 years, and I considered him my spouse for all purposes. I added him to the deed as a “joint tenant with full rights of survivorship,” so that if I died, the lot would be his (worth over $200,000 in current real estate market). Unfortunately, he passed away last month after a short illness.

I didn’t get along well with his family, and neither did he. We basically never heard from his kids from a prior marriage. Sure enough, last week I get a call from one of them saying they now own the lot. I was very careful to note that there was a right of survivorship on the deed, so they can’t be right. Right?

–Amy T.

Dear Amy:

First, my condolences on the loss of your partner. This must be especially difficult considering the hurricane impact. It is heartening to see so many people in our community that plan ahead to take care of loved ones as you have. Your goal of having your partner have financial security if you passed was a noble one.

Unfortunately, good intentions do not always lead to good results. From the in-formation you presented, your wishes for the property will not come to fruition based on the deed you prepared. The reason for this is how you held the property, in your trust. Trusts can be an excellent tool, both to manage assets after passing, as well as avoiding probate. However, like a corporation, trusts do not “die” like a person can, which means there can be no “survivor” in a joint tenancy where a trust is involved. Because your trust was a 50% owner of the property, when you added your partner this would automatically create a “tenancy in common,” meaning each owner has an undivided 50% interest in the property. For your half, whatever the trust says regarding disposition of the property would control for the portion you own. However, the other 50% would be held by your partner (now his estate), which would require probate to descend to the legal owners. If he had a will that named you, the property should be all yours after probate. However, if he had no will, the 50% will likely be split amongst his children in equal shares. The end result would be you owning 50%, with the other 50% being held by his children.

Every situation is unique, and there may be more information you have that could lead to a different result. Your situation serves as a warning to anyone considering preparing their own deeds to accomplish goals. Whether your home or an investment, real estate represents a very large asset that should be managed carefully. Based on what you have written, I would have recommended an Enhanced Life Estate deed, which would have provided the benefit of the property to your partner if you died, while maintaining full ownership and control by you during your lifetime. If you had done this, and your partner died, you could have revoked the deed and his family would have no involvement.

Eric P. Feichthaler has lived in Cape Coral for over 35 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 Museum of History, 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. He 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.