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Life estate deed would help make sure children get the home

November 2, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

I am 60 years old and recently married for a second time. I own my home in Cape Coral, and my husband has lived with me for the past four years. Since I paid for this with my money, I would like my children to receive it when I die. But, I also want my husband to be able to continue to live here if I die before him, but I don't want him to give the house away to his family. Can this be accomplished?

-Jane L.

Dear Jane:

This is a question that arises frequently - families with multiple marriages wishing for assets to be divided according to various methods, other than the simple "Divide it among our kids." As your home, your property is your homestead. Even though it is in your name alone, your husband would have rights to use the property if you predeceased him. This right would be for his lifetime. It should be noted that homestead rights can be waived, however legal counsel should be sought if there is a desire to eliminate homestead rights of a spouse.

I often talk about life estate deeds and their benefits, and your situation would be a candidate for one here. The deed would provide that, if your husband survived you, that he would have the right to live in the home for life (with the responsibilities of maintenance and paying property taxes). He is called the "life tenant." After he passes, the deed can provide that your children would become the owners. On a few occasions, I have had the surviving spouse make an agreement with the kids, to either buyout their interests, or to sell their life interest to the kids.

In short, this can be accomplished through several methods, with the life estate deed being most straightforward. However, there may be other options, like using a revocable trust, that may fit your situation better.

Eric P. Feichthaler has lived in Cape Coral for over 30 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 Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 17 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.

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.



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