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Florida: The Perfect Home with the Perfect Partner

Many people are drawn to live and work in Florida because of its beautiful weather. Other people are drawn to Florida because it has no state income tax. If you are a married same-sex couple (SSC) or, have a domestic partnership or civil union there are several important real estate ownership issues you should consider before buying Florida real estate.

Florida is currently a non-recognition state despite last year’s U.S. Supreme Court decision in Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Even if a SSC is married in a recognition state and then resides in Florida they will not receive all of the state benefits as a heterosexual married couple who buys real estate. While many people are confident that either the state or federal courts will strike down the Florida DOMA statute here is what you need to know now to properly plan ahead:

  1. Avoiding a Large Real Estate Tax Bill: Without proper planning, the surviving same-sex partner will get hit with a large real estate tax bill when their spouse or, partner dies. One way to avoid this is to title the ownership in both spouses/partners names as “joint tenants with rights of survivorship (JTWROS).” One benefit of doing this will be to avoid the court process called probate when one co-owner dies.
  2. Homestead Exemption: If the property is titled as JTWROS be sure that both of you file an application for Florida Homestead Tax Exemption. The benefit is that the surviving owner will receive the Save Our Homes protection click here to learn more and avoid a tax hike when the co-owner dies.
  3. Strengthen Your Legal Plan: Even if your home is titled jointly with your spouse or partner it is still important that you have a well-drafted Durable Power of Attorney that gives your spouse or partner legal permission to make real estate decisions for you if you become physically or cognitively incapacitated. Being a joint owner (regardless of sexual orientation) does not give you permission to sign a deed to sell the property, or sign a mortgage or note to obtain a loan or refinance a loan on behalf of your incapacitated loved one. Be sure to include this document when creating a life care plan.

There are many different options when it comes to ownership of Florida real estate. Each type of ownership has different benefits and limitations. Be sure to receive legal advice that is tailored to you and your spouse/partner’s goals.

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