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Real Estate Law | Couple needs clear plan to avoid probate and disputes over home

By ERIC P. FEICHTHALER - Real Estate Law | Nov 9, 2023

Eric P. Feichthaler

Mr. Feichthaler,

I recently married my husband, and we reside in a home he has owned for many years. We are both in our second marriage, and both of us have adult children.

I read your column often, and see that planning can be very important if we wish for our home to avoid probate or disputes. We want to make sure our ex-spouses have no claim to the property. What should we do to make sure this happens?

Becky R.

Dear Becky,

Florida law can be a little tricky, and sometime counter-intuitive, about the result when a spouse dies and the home is only in one spouse’s name. Previously, a surviving spouse not on title had the right to remain in the home for life, with the requirement to pay taxes, insurance and maintenance of the home. The children of the deceased spouse would then receive the home after the death of the spouse not on title.

Back in 2010, the law changed to provide a choice to a surviving spouse: They could retain the life estate OR elect to become a 50% owner of the property, with the deceased spouse’s children owning the other 50%. The surviving spouse has six months to make this election. When this election is made, all parties own as tenants in common, which provides all parties the potential to force a sale.

Regardless of how you and your husband wish for the property to descend, planning through deeds or trusts will make the transfer a smooth and simple process in the future. For instance, if it is your intention to have the surviving spouse own the property outright, you could simply be added to the title today, as “tenants by the entireties.” If you wish to provide for more specific future planning, including how the property may benefit children or grandchildren, a living / revocable trust may suit your needs.

Having a plan that is clear not only can save thousands, or tens of thousands, in court costs and legal fees in the future, but it also provides you and your family peace of mind to know your wishes will be followed.

I wish you much happiness in your new marriage!

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.