Property Title Update for Same-Sex Married Couples in Florida

Property Title Update for Same-Sex Married Couples in Florida

Prior to the legalization of same-sex marriage in Florida in January 2015, same-sex couples held property jointly in a couple of ways:

Joint tenancy. When two people own property together with rights of survivorship, this is known as a joint tenancy. The advantage of joint tenancy is that when the first property owner dies, the property then passes directly to the second owner, thus avoiding probate.

Tenancy in common. Tenancy in common is used when two or more people own property together and each owner has a separate and undivided interest in the property. Each property owner has the right to lease, sell or pass on his or her interest in the property to his or her own heirs. This form of ownership typically does not avoid probate.

When a couple is married and both spouses take title at the same time, this is known as tenancy by the entirety. With this type of title, one spouse must consent before the other spouse can transfer an interest in the property to someone else. Tenancies by the entirety offer other protections specifically tailored to protect a marital estate. The issue of whether Florida will recognize the concurrent estate of tenancy by the entirety for same-sex married couples remains to be resolved.

The North American Title Insurance Company’s (NATIC) issued its guidelines for dealing with property rights and tenancy by the entirety issues for same-sex married couples as follows:

1. If a property owner states that he or she is married to a same-sex spouse, joinder of the spouse is required for any conveyance or mortgage of homestead property.
2. When a same-sex married couple is purchasing property, the deed may reflect that the parties are married. (Example: John Doe and Bill Doe, a married couple). The buyers, or their legal counsel, must make this decision and advise the title agent how they want to take title.
3. When title is vested in a married same-sex couple, judgments against one spouse should be treated as having attached (instead of relying on the existence of a tenancy by the entirety).
4. When title is vested in a married same-sex couple, with no mention of the right of survivorship, and one spouse dies, probate should be required instead of relying on a tenancy by the entirety. Same-sex married couples can avoid probate by executing corrective deeds if the original deed has been issued to only one of the spouses as owner.

To avoid making a mistake when titling your property, contact one of the experienced Florida real estate attorneys at Jurado & Farshchian, P.L., at (305) 921-0440, or email us at info@jflawfirm.com.

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