Common Florida Property Ownership Titling Structures – Joint Tenants with Rights of Survivorship and Tenancy by the Entirety

Titling Florida Property Under a Joint Tenants with Rights of Survivorship Ownership Structure

There are several different ways for Florida property co-owners to structure how the property is titled. Each ownership structure carries its own sets of advantages, potential drawbacks and legal protections.

Determining which ownership structure is right for your Florida property depends on the unique circumstances and legal needs of all parties as co-owners. Here is a closer look at Florida law on establishing a joint tenancy with rights of survivorship.

What Is a Joint Tenancy with Rights of Survivorship?

A joint tenancy with rights of survivorship is created when co-owners expressly provide that full title of a deceased co-owner’s property interests will go to the surviving owners. In other words, the “survivor” owner or owners will automatically own 100% of the property assets of a deceased party’s legal ownership interests.

This is not Florida’s default approach to how co-owned property interests are handled, however. Florida law defaults to the presumption that co-owned property is held as a tenancy in common, as is clearly shown in Section 689.15 of The 2017 Florida Statutes. Under a tenants in common ownership structure, a deceased co-owner’s property interest will be distributed according to their estate plan. If the co-owner does not have an estate plan or will, then the property interest is distributed based on Florida probate law.

To make sure that co-owners receive the ownership interests of a deceased co-owner
automatically, all parties must clearly identify their intent to own the property together as a joint tenancy with rights of survivorship.

Naturally, then, one significant benefit of this approach to titling is that all co-owners will retain property ownership should a fellow co-owner pass away, while also avoiding the hassles of probate. Still, there are some downsides to this titling approach that are important to keep in mind.

Potential Drawbacks to a Joint Tenancy with Rights of Survivorship

A joint tenancy with survivorship rights ownership structure will end if a joint owner alienates the property or conveys it to a stranger without an ownership interest. Since each owner can do what they wish with their share of the property, their portion of a condo or home can be transferred without the approval of co-owners.

If a co-owner does so, then this action will create a tenancy in common, Florida’s default approach to co-ownership. If this occurs, then the benefits of avoiding probate and retaining property ownership when a co-owner passes away will be lost.

Due to this, it is important for Florida married couples to keep in mind that they can form a tenancy by the entirety, rather than take a joint tenancy approach. A tenancy by the entirety treats the married unit as a single legal entity, which provides survivorship rights to a spouse while also ensuring that a spouse must have the signature of the other spouse to convey homestead property. Further, a tenancy by the entirety can provide essential protection from creditors that a tenancy in common or joint tenancy approach cannot provide.

If you have legal questions or concerns about the best approach to co-ownership in Florida, contact us online to discuss the matter with a Jacksonville Florida estate planning lawyer.

The Judy-Ann Smith Law Firm helps clients with all aspects of estate planning and probate estate administration. To learn more, contact us in Jacksonville today at 904-733-9080.

Titling Florida Property as a Tenancy by the Entirety

Tenancy by the entirety is a recognized form of Florida property ownership that is available exclusively to married Florida couples. This form of ownership treats both spouses as a unit where each spouse has a whole ownership interest through a shared marital union, rather than two owners with merely partial ownership interests.

It is important to recognize that Florida law views the husband and wife to both own an undivided interest in the property, albeit without having this ownership interest as an individual spouse. Further, a tenancy by the entirety provides both spouses with 100% ownership if either spouse dies while the other spouse remains alive.

Florida Law Presumes That Married Couples Who Jointly Purchase Property Enter a Tenancy by the Entirety Ownership Structure

According to Section 689.115 of The 2017 Florida Statutes, Florida law presumes married couples enter into a tenancy by the entirety when property is purchased jointly. However, several key characteristics must generally be met for a married Florida couple to hold property as a tenancy by the entirety. These characteristics are as follows:

  • Joint ownership, joint control and identical interests in the property
  • The identical interests arose from the same instrument or transfer of property
  • The interests originated at the same time
  • The parties were married when the property was jointly acquired
  • A right of survivorship exists, meaning the surviving spouse will receive 100% ownership of the property

Benefits of a Tenancy by the Entirety

One of the most important benefits of a tenancy by the entirety relates to protection from creditors. A tenancy by the entirety provides creditor protection in a way that other co- ownership structures (tenancy in common, joint tenancy with right of survivorship) do not.

Specifically, if a creditor has a claim against one owner and obtains a judgment against one spouse, the property will be protected. However, it is worth noting that spouses who are jointly indebted to a creditor will not receive this protection.

Effectively, a judgment against both spouses will not be capable of enjoying asset protection that exists when a judgment is only obtained against a single spouse within a tenancy by the entirety structure.

This distinction exists because tenancy by the entirety is not divisible on behalf of a single spouse, meaning the property cannot be reached to satisfy a single spouse’s debt obligations.

Another key protection benefit of a tenancy by the entirety form of co-ownership is unique to Florida law. Most states say that only real property is provided the protection previously described. In Florida, however, tangible and intangible personal property may enjoy tenancy by the entirety protection as well as real property.

Finally, another potential benefit and distinguishing characteristic of a tenancy by the entirety is that neither spouse can give away or sell their property interest without the other spouse’s consent. In other forms of co-ownership, selling a property interest or giving it away is generally allowed. This may, however, be a potential disadvantage depending on your legal needs, making it helpful to speak with a Jacksonville Florida estate planning lawyer when determining the best way to title your marital property.

Remember That Tenancy by the Entirety Interests Can Be Lost in Unique Ways

Do keep in mind that a tenancy by the entirety can end when spouses divorce, at which point Florida presumes the ownership interest will become a tenancy in common. If a spouse passes away, then the presumptive ownership will become a fee simple 100% ownership because the property passes to the surviving spouse automatically by operation of law. Both of these presumptive outcomes are based on existing Florida law.

Additionally, couples who enter into a tenancy by the entirety can also choose to terminate a tenancy by the entirety arrangement if both spouses agree to the termination.

If you have any legal questions or concerns about whether a tenancy by the entirety is right for you, contact us to speak with a Jacksonville Florida estate planning attorney.

The Judy-Ann Smith Law Firm helps clients with all aspects of estate planning and probate estate administration. To learn more, contact us in Jacksonville today at 904-733-9080.