Eric P. Feichthaler

Mr. Feichthaler:

We are 20-year residents of Cape Coral and wish to have our home pass to our children (two grown daughters) upon our passing. They are both married, but we are not particularly fond of their husbands. We have read in your column that an Enhanced Life Estate Deed avoids probate for our house, but will it also avoid our sons-in-law having rights to the property?

Gertrude and Stanley R.

Dear Gertrude and Stanley:

Thank you for reading the column! For many clients, the Enhanced Life Estate Deed is an efficient way to have your property descend your children, avoiding probate and other costs. However, because of that efficiency, the property passes to the total ownership and control of your daughters with “no strings attached.”

In Florida, inherited property is considered “separate property” from the spouse of the person who inherited it. So, as a starting point, the husbands of your daughters will have no right or claim to the home.

To keep this property separate, your daughters would need to refrain from adding their spouses to the deed. If they sold the property, so long as they kept the funds in a separate account from the marital assets, those funds would remain solely to benefit your daughters.

When clients ask if a living trust would benefit them, my first question is whether there is a desire to manage assets after death. Unlike the enhanced life estate deed, in a trust you, as grantor, can add as many restrictions and requirements as you wish. For example, you could state that the proceeds from the sale would remain in the trust, and only be used to pay certain direct expenses of your daughters for some period of time. However, in a situation like yours, I typically counsel clients that a good option is to discuss your goals with your daughters, advise them of the rules relating to separate property, and to rely on them to keep the property separate.

Every family’s situation is unique. Prior to proceeding with a plan to avoid probate and benefit your daughters, a discussion with an attorney is highly recommended.

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 Cape Coral 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, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. 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.