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When jointly purchasing home, how do you make sure heir gets a share?

By ERIC P. FEICHTHALER - Real Estate Law | Apr 13, 2023

Eric P. Feichthaler

Mr. Feichthaler,

I recently bought a home with my future daughter-in-law jointly. I am on title because I provided the majority of the money to buy the house. I want to make sure that, if I die, that my half goes to my son, whether they get married in the future or not. My daughter-in-law plans to make this property her homestead. How can I make sure my son gets my half?

– Maureen T.

Dear Maureen,

My clients include families of every composition and financial position, but all share a similar goal: the peace of mind knowing their assets go to their loved ones, and to eliminate the need for disputes, courts and lawyers in the future. Your question is one shared by many, and it is important to address.

First, the way in which you take title to property when purchased is key. It appears you and your future daughter-in-law own this property as joint tenants with rights of survivorship. That means if one of you died while owning it, the surviving owner would take 100%. You may be aware that the Florida Constitution provides unique benefits to owners of homestead property, along with their spouses and minor children. However, where joint ownership with rights of survivorship is in place, the surviving owner would take title. So, if you are married and your husband lived with you in this house as homestead, and you died, he would NOT have any rights to the property. Similarly, if your son marries your co-owner in the future and she died, the same outcome would result – you would own the property, and he would have no rights.

Since your goal is for your 50% to pass to your son, you would first need to “break” the joint tenancy. You could do this by signing a deed to yourself as 50% tenant in common. Now, if either of you died, the 50% would remain with the beneficiaries of that particular owner. If you then executed an enhanced life estate deed on your 50%, naming your son as remainderman (beneficiary), your 50% would pass to him on death.

It sounds like you all get along very well now, so it is advised to have a discussion what everyone’s goals and objectives are for ownership, homestead and beneficiaries. Once that is achieved, a unified plan to meet your wishes can be implemented. Another possibility is to place the house in a trust, where everyone’s rights and obligations can be spelled out. In the alternative, a partnership agreement could be put in place.

I am very fortunate to work with families that get along great and have their goals aligned, and you appear to possess those good relationships. With a good written plan that achieves everyone’s goals, you help to continue that harmony into the future.

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.