By Carrie Felice, Esq.
There are three basic ways to hold title to real property with one or more other people, in Florida: Tenants in Common, Joint Tenants with Rights of Survivorship, and Tenants By the Entirety.
Tenants in Common
The default for non-married, co-owners (even co-owners who may get married later), where no language regarding survivorship rights is included in the deed, is tenants in common. As tenants in common, you and your co-owner each own a certain percentage of the property. In the absence of language stating otherwise, this would be 50/50. However, the deed may state a different percentage division of ownership. If the division of ownership is other than 50/50, tenants in common is the only way the co-owners can hold title. Any number of co-owners may hold property as tenants in common.
Joint Tenants with Rights of Survivorship
There are two important differences between a tenancy in common and a joint tenancy with rights of survivorship. The co-owners must own an equal share of the property, and upon the death of one co-owner, the surviving co-owner automatically takes the interest of the deceased co-owner. With a tenancy in common, if one co-owner dies, his or her interest will pass to his or her heirs through probate proceedings. Any number of co-owners may hold property as joint tenants with rights of survivorship.
Tenants by the Entirety
A tenancy by the entireties is a form of ownership reserved for married couples. If no other ownership type is specified on the deed and a percentage of ownership is not defined in the deed, property owned jointly by spouses, which was received in the same deed and received WHILE the owners were married, is presumed to be held as tenancy by the entireties. In a tenancy by the entireties, the spouses each own 100% of the property, as if they were one person. Therefore, one spouse may not sell or mortgage any portion or percentage of the property without the joinder of the other spouse. Additionally, property held as tenants by the entirety is protected from the debts and creditors of only one spouse.
Upon a divorce, the ownership automatically converts to a 50/50 tenancy in common.
Property acquired together, but before the marriage, will either be held as joint tenants with rights of survivorship (if the deed specifically says so) or as tenants in common. A tenancy in common or a joint tenancy WILL NOT automatically convert to a tenancy by the entireties once you are married. A new deed, executed after the marriage, is required to establish a tenancy by the entireties.
Property held as tenants in common by a married couple will be subject to probate proceedings upon the death of one of the spouses. Further, due to Florida’s homestead laws, it is possible that your interest in property owned with your spouse, could pass to your minor children rather than to your spouse, upon your death. This can be particularly complicated if there are minor children from previous relationships or marriages.
If you and your spouse purchased real property together before you were married and want to take advantage of the creditor protections and survivorship rights of a tenancy by the entirety, call of office today to speak with an experienced real estate attorney about your specific situation and whether you should execute a new deed that will establish a tenancy by entireties form of ownership in your property.