How individuals take title to real estate in Florida is critical and can lead to unintended consequences if not done correctly. Recently, one client found out that because of the way she and her boyfriend took title to their home she only received a half interest in the home they shared for many years. The other half went to his children. You need to discuss how to title your real estate with the attorney or closing agent preparing the deed.
Individuals acquiring real estate typically receive title as either: (a) tenants by the entireties; (b) joint tenants with rights of survivorship; or, (c) tenants in common with no rights of survivorship.
Tenants by the entireties is a form of ownership available only to married couples. The recent U.S. Supreme Court ruling in Obergefell v. Hodges mandated that all states license same-sex couples and recognize same-sex marriages from other states. This form of ownership means that title passes automatically to the surviving spouse, without need for probate. It is also a very strong asset protection tool, as a judgment or lien against only one spouse does not typically constitute a lien against the real property titled in this manner. Typical language used to establish this form of ownership is “husband and wife” or “a married couple.”
Joint tenants with rights of survivorship means that upon the death of one of the property owners, the other owner (or owners) legally acquire the deceased person’s interest. For example, if there were two property owners, and one of the co-owners dies, the surviving owner is now the sole owner of the property. Title passes automatically and avoids probate. However, a judgment or lien against a co-owner will be a lien against property titled in this manner, which could certainly complicate a sale or refinance. To establish this form of ownership, the deed should include language stating the parties are taking title as “joint tenants with rights of survivorship.”
Tenants in common means that upon the death of one of the property owners, the interest of the decedent passes to his or her estate, and not necessarily or automatically to the other property owner(s) named in the deed. I see this form of ownership quite often when siblings take title to property acquired from deceased parents. Also, if the deed is silent as to how title is to be taken, it is viewed by the court as tenants in common. This form of ownership provides no asset protection, and does not avoid probate. Also, the surviving joint owner will be forced to own property with someone new.
Instead of taking title in individual names, it may be appropriate to consider taking title in a trust, corporation, or limited liability company. There is no one size fits all answer. It depends upon the relationship of the parties, type of real estate, and estate planning objectives of the owners. As a client, you need to ask questions and find the way that works best for you and your family.
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