How Florida Real Estate Law Works for Married Couples

by Carly St Peter 03/28/2021

Image by Richkat from Pixabay

When you’ve found the right house in the Sunshine State and are ready to close, the title company's agent will ask you a question. How do you want the deed vested?

Florida couples can own a home as:

  • Tenants in common.
  • Joint tenants with right of survivorship.
  • Tenants by the entirety.
  • Of the three forms, tenancy by the entirety is the one that's especially designed for, and only available to, partners in marriage. 

    Vesting as Tenants by the Entirety Is the Default for Married Couples

    When one spouse passes on, property vested as a tenancy by the entirety goes seamlessly, by operation of law, to the surviving spouse.

    Tip: If you want to pass your interest in the real estate through your will instead—for example, to your child from an earlier marriage—you wouldn’t vest this way. Vest it as property held as tenants in common, but be sure the new co-owners can agree on how they would handle this status after you’re gone.

    There are two other big reasons to select this form of vesting: 

    • Other than the IRS, creditors cannot slap a lien on the home to go after a judgment against just one spouse. 
    • Because both spouses have to sign the deed if it's ever sold, the property will never be sold by one spouse without consent of the other. The rule? The deed needs two signatures. (If you take ownership as joint tenants with right of survivorship, you don't get this protection.)

    Tenancy by the entirety the top pick in Florida home co-ownership among married people. Under Florida homestead law, when a married couple takes title, it's presumed, absent contrary language, to vest as a tenancy by the entirety.

    Tip: In Florida, a single homeowner may, after getting married, convey a home from sole ownership to the couple, effectively creating a tenancy by the entirety with the new spouse. When transferring title from (a) yourself to (b) you and your spouse, transfer the entire interest in the property—not just 50%. This way, you have complied with the criteria for a tenancy by the entirety: two married people obtain an entire ownership interest together, with full rights as owners, through the same deed.

    What Happens In Divorce?

    In a divorce, a tenancy by the entirety stops existing. The parties would become tenants in common if they were to continue owning property together. In reality, Florida divorce courts divide property according to the equitable distribution principle: in fairness to both, given the particular circumstances. Courts put the children's best interests first in deciding which spouse should remain in the home. 

    If you're on the deed, you enjoy equal and full ownership rights together with your spouse unless and until a judge orders otherwise.

    Tip: If you leave the home voluntarily, it's likely that the divorce court will resolve the distribution question by awarding the home to your spouse, and compensating you for your lost value in the home.

    If you need case-specific counsel about your property rights should you marry or divorce, consult with an experienced Florida attorney. 

    About the Author

    Carly St Peter

    Hi, I'm Carly St Peter and I'd love to assist you. Whether you're in the research phase at the beginning of your real estate search or you know exactly what you're looking for, you'll benefit from having a real estate professional by your side. I'd be honored to put my real estate experience to work for you.