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Deeding interest ‘from me to us’ a good idea

February 28, 2020
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

I purchased my home in Cape Coral in 2011 at a good price, and took out the standard 80% loan. Two years ago, I found the love of my life in line at the supermarket, and we married 6 months later. I hadn't really thought about it until a friend of mine passed away, but the house is still in my name, and I want to make sure the house is my husband's if I were to die before him. Do you see any problems with signing a deed transferring from me to us?

- Ruth L.

Dear Ruth:

First, congratulations on finding true love, and for purchasing a home at the low prices available back in 2011. By deeding the house to you and your husband, no probate will be needed if either of you dies.

Instead, all that will be needed is the recording of a death certificate with Lee County, and it will be titled to the surviving spouse.

There is a major caveat, in the "no time like the present" category. Typically, documentary stamp taxes are paid on the transfer of real estate for the value paid. This is, in essence, a real estate transfer tax. Normally, when a person gifts an interest in real estate to another, only minimal documentary stamps are payable (at 70 cents per $100 in value, or .7%). Even though (I assume) you are not charging your spouse for half the value of the home, documentary stamp tax can still be payable. That is because Florida law defines value, or "consideration," to include existing debt on the property. Historically, this included deeds to spouses.

However, in 2018, the law was amended to allow for newlyweds to transfer property that had a mortgage without paying tax on the mortgage amount, when the transfer was made within a year of marriage. If the deed was recorded over a year after marriage, the tax would apply.

Great news! This is one of few situations where you will benefit from delaying, because, in 2019, the law was further amended to state that transfers of property with mortgages between spouses will not incur the documentary stamp tax, regardless of how long the couple is married. With that exception now in place, deeding your interest to you and your husband is a great idea, with a much lower cost.

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 18 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.

Mr. Feichthaler 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.

 
 
 

 

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