The Complexity of Joint Property Ownership in Florida

The laws related to real estate ownership in Florida can be complex. These complexities become even more pronounced when joint property ownership is a factor. When properties are owned by more than one title holder, it is not uncommon that legal matters arise that require the involvement of an experienced real estate and estate planning lawyer to resolve. 

Joint Property Ownership in Florida

Before exploring legal situations related to joint property ownership, it is important to understand the different ways that real property can be jointly held in Florida.  Property can be held by tenants in common, a joint tenancy, a joint tenancy with right of survivorship and a tenancy by entirety.

Tenants in Common

In Florida, concurrently owned properties are, by default, owned by “tenants in common” or “tenancy in common”. This form of property ownership gives each person listed on the deed the right to equal ownership of and privileges to use all areas of the property, unless expressly stated otherwise. 

If expressly stated, tenants in common can have different ownership stakes to the property.  For example, three tenants in common may have 55%, 25% and 20% ownership stakes, respectively. Tenants in common can join and leave the arrangement at any time with the consent of the other tenants in the arrangement.  

Although tenants in common share portions of the ownership of a property, they are not automatically assigned to any physical boundaries within the property.  In other words, they own a portion of the title of the property yet, unless otherwise specified in the title, have full use of the property as long as they are tenants in it.

Tenancy in common ends when a partition action is filed – allowing one of the tenants in common to sell their stake. If the second to last person sells their stake to the remaining tenant, the tenancy in common ends and a single tenancy arrangement begins.

In tenancy in common arrangements, survivorship benefits do not apply. This means that upon the death of one of the tenants in common, the share that belonged to the deceased can be inherited by the heirs of the deceased tenant.

Alternatively, individuals can establish a last will and testament in Florida to specify the beneficiaries of their real estate assets, with considerations for Homestead limitations. Unless the property interest is held within a Florida revocable trust, the heirs or beneficiaries must initiate probate proceedings in Florida’s probate court to transfer property titles accordingly.

Probate attorney services are typically required for heirs or beneficiaries named in the last will and testament to give legal support in the probate administration process.

Disadvantages of property interests undergoing probate include the public nature of the Florida probate system, which enables access to information by any interested party. Additionally, probate attorneys typically deduct a percentage from the assets involved in the administration, not to mention the associated stress and duration of the process.

Joint Tenancy

In Florida, married couples are automatically said to be joint tenants in their property of residence. If expressly stated on the deed, other concurrent owners can enter into a joint tenancy agreement as well.  Like tenants in common, a joint tenant is permitted to sell their share of the property. Joint tenants differ from Tenants in Common in that they always own equal shares of the property meaning that they do not have the option of assigning different stakes to each property owner.  A joint tenancy setup does not avoid having to go through the Florida probate process. Upon the death of one joint tenant, the property can be inherited by the heirs of the joint tenant(s) or the beneficiaries specified in the last will and testament. To bypass the involvement of Florida probate court, the interest must be established as joint tenants with the right of survivorship.

Joint Tenancy with Right of Survivorship

Under Florida law, when you add the words “right of survivorship” to a joint tenancy, that means full title to the real estate goes to the owner that survives the death of the other(s). The “survivor” of the joint owners automatically owns 100% of the asset when the other joint owner (or owners) passes away. A tenant relationship subject to these terms would be called a Joint Tenancy with Right of Survival (JTWROS). Note that tenants in common have no automatic rights of survivorship.  This means that if one of the tenants in common dies, the remaining tenant(s) keep their same shares of the property and the deceased’s portion goes to their estate.

Tenancy by Entirety

A Florida tenancy by entirety, (also named a tenancy by the entireties or estate by entirety) is a legal form of joint ownership available only to married couples. In a tenancy by entirety the married couple is viewed as a unit rather than as individual owners. Therefore, each spouse does not hold a partial interest, but is instead each is considered the owner of the entire property. 

Under Florida law, when one spouse dies in a tenancy by entireties, the property automatically passes in a similar manner as it would in a joint tenancy with right of survivorship.

“When properties are owned by more than one title holder, it is not uncommon that legal matters arise that require the involvement of an experienced real estate and estate planning lawyer to resolve.” 

Florida Homestead Considerations

In Florida a property owner’s primary residence is considered to be their legally protected Homestead. Florida Homestead protections restrict others from forcing a sale or disinheriting an owner from their Homestead in specific scenarios.

Florida statute, for example, states that if a property owner has a spouse and/or minor children, that owner may not transfer their Homestead in a will or a trust. However if that owner has no minor children, then the owner may transfer the Homestead only to his or her spouse.

There are, however, exceptions to this if the joint ownership in the property is a joint tenancy with right of survivorship or a tenancy by entirety between spouses. Florida statute 732.401(5) provides for these exceptions which are based on case law and are best interpreted by an experienced estate planning attorney.

The Importance of an Attorney

When deciding how to jointly own a property in Florida, it is important to be aware of one’s rights, obligations and restrictions under law.  Factors such as survivorship, the enforceability of wills, the optimal type of trust structure to employ in a given situation, asset protection in a Medicaid scenario and avoiding the costly probate process can make joint ownership a complex legal situation in Florida.  Further complications could occur, for example, when one owner is on a second or third marriage and has children from previous marriages. 

If you are facing a legal issue related to joint ownership in a property, beware of attempting to “go it alone”.

Having an experienced real estate and estate planning attorney on hand to help protect your best interests in such a scenario can make a positive difference in the outcome.

South Florida Law

South Florida Law, PLLC is a full service real estate and estate planning law firm with offices in Broward (Hallandale) and Miami-Dade (Coral Gables).  With South Florida Law you benefit from the attention to detail and access to partner-level advice that only comes from a boutique-sized firm.  However, you also benefit from the firm’s considerable resources that are more akin to that of a larger law firm.  If you are facing a legal matter related to joint ownership in a property then reach out to us today for a free consultation by calling (954) 900-8885 or via our website contact form.

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