Did your spouse and you buy real property before you were married? If so, you may encounter estate and liability issues that you never considered. Under Florida law, if a husband and wife purchase real property, they take title as “tenants by the entirety”, unless the deed specifically provides otherwise. A “tenancy by the entirety” is a unique creature available only to married couples which provides for automatic passing of title to one spouse upon the death of the other. A “tenancy by the entirety” also provides additional protection against judgment creditors, since property owned by a husband and wife will not typically be subject to levy for judgments and other claims against only one spouse.
A lot of couples, however, purchase property before they get married. In those instances, they typically take title as “tenants in common” meaning each owns an undivided one-half interest. In the event of the death of one owner, his or her interest does not necessary pass to the other co-owner; title would pass under the estate of the deceased party. This means a probate may be necessary. Also, a judgment holder against either “co-tenant” could levy on a party’s undivided one-half interest in the property (assuming the property is not homestead).
We recently encountered a transaction where an unmarried couple purchased property and then subsequently married. After the husband’s death, the wife attempted to sell the property only to find out that she did not own all of the property and that her husband’s estate needed to be probated in order to determine who owned his one-half interest. Their intention was to own the property jointly, with the surviving spouse receiving all of the property. Their plans, however, were thwarted by their failure to properly plan.
Couples can remedy this situation simply with a little planning. After getting married, the couple may convey the property to themselves “as husband and wife” and create the “tenancy by the entirety” thereby ensuring the passing of title upon death of one spouse, with the added bonus of additional protection against creditors’ claims.