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Home ownership and protecting partners

By ERIC P. FEICHTHALER - Real Estate Law | Sep 15, 2023

Eric P. Feichthaler

Dear Mr. Feichthaler:

My partner and I have been together for over 20 years, and we have a great relationship. He has never wanted to speak about what would happen to me if he passed away, so we don’t have any plan. Now that we are older, I think the time has come. I wasn’t sure if being together this long gives me any rights to the home we live in, which is titled only to my partner. Any advice?

-Kelly B.

Dear Kelly:

This issue is on the mind of many of my clients, both married and non-married. Although surviving spouses have rights an protections in a situation like this, unmarried partners have no rights to their partner’s homestead property. With the property in your partner’s name only, the property would descent either to your partner’s heirs, or whomever your partner names in the will or trust. In your situation, with no estate plan in place, the property would pass based on the Florida Statutes regarding intestate succession. Intestate means the decedent passed without a will or other plan. If your partner had children, it would go to them first. If none, then any living parent, and so forth. Unless a homeowner wants the statute to determine where properties and other assets go on their death, planning is very important.

If the intent of your partner is to give you rights on their death, there are several ways this can be approached. First, if the intent is for you to own the property at your partner’s death, an enhanced life estate deed can be prepared, which would name you as remainderman (or beneficiary). Upon death, the property would be yours with the recording of a death certificate, subject to any mortgage on the property.

If the intent is to allow you rights, but not ownership, a trust can be created to hold the property. For example, the trust provisions can provide you with rights to live in the home for your life, with the property transferring to a family member or other beneficiary of your partner. As owner, your partner can create a plan to accomplish your specific goals. For every client I meet, I express our two main goals: Avoiding the expense and stress of probate, and making sure that the wishes of the client regarding distribution of assets is accomplished.

Whatever you both decide how that plan should look, it is important to seek legal counsel to ensure your wishes are met.

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.