Owning Properties in Florida as Joint Tenancy by the Entireties / How to Avoid Probate by Titleling Property in Husband and Wife’s Name

Generally speaking, Florida follows the common law doctrine that a special estate can be created in the ownership of real and personal properties when it is purchased in the name of husband and wife. This is called the Tenancy by the Entireties Doctrine. By reason of their legal unity by marriage, the married couple can take the whole estate whether it is real property or personal property and be considered as a single owner. The ownership of the property goes to the surviving spouse upon the death of one.

The biggest advantage of this ownership is that you can avoid probate when a husband and wife buy their property in Florida and one of them dies. An estate by the entireties, therefore, is held by the spouses by virtue of the title acquired by them jointly during their marriage.

In Florida, you must have a valid marriage. Florida law does not recognize common law marriage. Consequently, in order to be validly considered as tenancy by the entireties, the husband and wife must have a marriage license and the marriage must be recognized as valid and legitimate in their home county.

A tenancy by the entireties to be considered valid in the state of Florida must possess always and at the same time have the following six characteristics:

1. Unity of possession. In other words, there must be joint ownership and control as to the property.

2. Unity of interest. This means the interest in the account must be identical.

3. Unity of title. This means the interest must have originated in the same deed or document. It is possible, however, that if a husband buys the property that he can then deed it to himself and his wife as tenancy by the entireties after he purchases the property.

4. Unity of time. In other words, interests commenced simultaneously if by the original deed are then created later by a subsequent deed of conveyance between the husband and the husband and wife as tenancy by the entireties.

5. Unity of marriage. The husband and wife must be married at the time the property became theirs or at the time they purchased it or acquired the property whether it is real or personal.

6. Survivorship.

Under Florida law, the unity of marriage sometimes is referred to as the unity of person. It does come from the common law concept that the spouses are but one person under the common law.

A married couple in Florida may choose to own property in Florida in forms other than by tenants by the entireties including as joint tenants with right of survivorship or as tenants in common.

Joint tenancies by the entireties can be applied to the ownership of a house as well as to the ownership bank accounts, share certificates in a incorporation or memberships in a limited liability company and other personal property tangible and intangible including various intellectual property rights, license agreements, patents, and copyrights.

Under the tenancy by the entireties doctrine, it is said that each spouse holds the whole or the entirety and not just a share or a divisible part. Thus property held by both the husband and wife as tenancy by the entireties belongs to neither spouse individually but each spouse is the owner of 100% of the property with the other. It is not subject to partition. It cannot be devised by will or by the laws of descent and distribution. Upon the death of one, it is automatically owned by the other in the state of Florida. Conversely, one spouse cannot transfer and convey an interest in property held as tenancy by the entireties. Both husband and wife must sign any transfer interest or deeds conveying out the property.

It is highly recommended that before you close on the purchase of your holiday villa in Florida that you have a qualified attorney in Florida review the contract for sale and purchase and the proposed deed, even if prepared by a title company, to determine if the deed properly conveys the property to the husband and wife as tenants by the entireties. It is permissible under Florida law to have the deed convey property as tenancy by entireties by putting the grantees as “John Smith and Jane Smith, his wife”.

With respect to transfer of personal properties, it is suggested that both husband and wife’s names appear and the words ‘as joint tenants by the entireties’ be included in the bank account, automobile title certificate, or other document of title so that there is no question that the husband and wife own the property and that upon the death of one, the other will inherit automatically.

A tenancy by the entireties may be created when either of the spouses uses his or her separate funds to acquire the property. This means that the property can then be taken in both their names. However, when one spouse provides the greater proportion of the purchase price for the amount of property, the law will presume a gift by that spouse to the other of the interest created.

With respect to conveyances of property to three or more grantees including a spouse, it should be noted that if the property is conveyed to John Smith and Jane Smith, his wife, and to Peter Jones, that it has only created a half interest for as to the husband and wife and a half interest as to Peter Jones. There is no creation of a one-third interest in each party.

Consequently, it is most imperative that the drafting of the deed or other instrument of conveyance be properly prepared to properly reflect the intent of the grantor at the time the gift or the sale of the purchase is consummated.

In conclusion, if you are a married couple and intend to purchase your summer or holiday villa in Florida, you should seriously consider having the deed prepared such that both spouses names are on the deed as husband and wife or as tenants by the entireties. By doing this, you may avoid probate upon the death of one spouse.

Please be sure to consult an appropriately qualified lawyer in Florida before you complete your sale and purchase. In closing, title companies are not lawyers and are not authorized to give legal advice. Please have your lawyer review all closing documents including the deed before you complete your purchase.