Page 82 - Akerman | 2016 Guide to Doing Business in Florida

9.3 Spousal Rights in Real Estate

9.3.1 General Rule: Spouses Deemed to Take Title as Tenants by the
Entireties

In Florida, a conveyance of real property to persons who are married is deemed to create a
tenancy by the entireties, unless a contrary intention is clearly shown in the deed of
conveyance. This is true whether or not the persons are stated to be married in the deed itself.
Spouses may elect to own property as tenants in common, if they wish to do so, and if the
intention is clearly stated in the deed of conveyance.
An individual who owns real property may subsequently create a tenancy by the entireties in
that property with his/her spouse. The creation of an estate by the entireties can be
accomplished by conveyance to one spouse, with a statement in the deed that the transaction
is intended to create a tenancy by the entireties, or by a conveyance to both spouses. If the
property is subject to a mortgage, consent of the mortgagee may be required for such a
conveyance. In addition, such a conveyance may trigger documentary stamp tax
consequences.

According to Florida Statutes § 689.11, interspousal conveyances of property, including
homestead property, no longer require spousal joinder. For instance, one spouse may convey
to the other his/her interest in property, whether or not homestead, without joinder of the
transferee spouse.

An individual who owns real property at the time of marriage continues to own that property,
subject only to homestead rights of his/her new spouse, if the property constitutes homestead
property. If the property is not homestead property, the spouse does not acquire an interest in
the real estate by virtue of a subsequent marriage, and the new spouse is not required to join in
any mortgage or conveyance.

For so long as an interest in real property is vested in husband and wife as tenants by the
entireties, a judgment against one spouse will not attach to the property. If property is owned
as tenants by the entireties, neither spouse, acting alone, may convey any interest in the
property or mortgage or otherwise encumber the property. Any conveyance or mortgage of
property owned by the entireties should be by means of one instrument executed by both
spouses. It is possible that separate deeds or mortgages, each executed by one spouse,
could be collectively construed as one instrument of conveyance or mortgaging, but such
construction might require judicial intervention.

9.3.2 Dissolution or Death
Upon dissolution of a marriage, persons who formerly owned property as tenants by the
entireties shall thereafter be deemed to own the property as tenants in common, as of the time
the judgment of dissolution becomes final, in accordance with Florida Statutes, § 689.15,
unless the judgment dissolving the marriage specifically provides otherwise.
If property is owned as tenants by the entireties, upon the death of one spouse, title
automatically vests in the surviving spouse, so long as the spouses remained continuously
married during their ownership of the property. This is true whether or not the property was
homestead property. Although it is sometimes requested or required, by a title insurance
company or other party, that an affidavit of continuous marriage be recorded, it is presumed, in

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