Joint Tenancy with Right of Survivorship & Tenancy by the Entirety as Alternative Estate Planning Tools in Florida

Introduction

In Florida, there are several ways in which you can own real property that would allow it to pass directly to joint owners upon the death of one co-owner without having to go through the probate process.

Estate planning is the process of arranging during one’s lifetime for the disposal and distribution of that person’s assets after death. Wills and trusts are commonly used when devising an estate plan. However, when it comes to attempting to avoid probate, the manner in which real property is owned can be a very powerful estate planning tool.

What is “Joint Tenancy with Right of Survivorship”?

Joint Tenancy with Right of Survivorship, or “JTWRS” as it’s commonly referred to, is the ability to own property concurrently with another individual knowing that upon your passing the joint owner will automatically assume complete ownership of the subject property.

This is one of the most popular ways in which property can be co-owned in Florida. This manner of ownership is commonly used among family members as a method to avoid probate, especially for smaller estates.

The most notable benefit to JTWRS ownership is that subsequent to the death of a joint owner the deceased owner’s interest in the subject property automatically vests in the surviving joint owner by operation of law and without the need for any action or recordation in public records.

For this reason, carefully drafted Online Directives are an important tool in ensuring the decedent’s wishes are carried out in a legal and acceptable manner.

However, practically speaking, parties often require transfer deeds to be executed and filed in public records reflecting the surviving owner’s sole ownership prior to finalizing subsequent conveyances.

To legally create JTWRS in the state of Florida, the right of survivorship must be expressly stated in the instrument creating the joint tenancy (typically a deed). In accordance with § 689.15, Fla. Stat, failure to expressly state the right of survivorship will result in the ownership interest being a tenancy in common with no right of survivorship for the remaining owners.

Is “Tenancy by the Entirety” Ownership Appropriate for you?

While tenancy by the entirety is similar to JTWRS in that the deceased owner’s interest in the real property is automatically transferred and vests in the joint owner, tenancy by the entirety has two specific requirements.

First, tenancy by the entirety is available only to married couples and, therefore, is often used to reflect ownership of principle residences. Secondly, tenancy by the entirety does not require express language in the transfer deed stating that the subject real property is owned in this manner.

In Florida, there is an assumption that property owned by a wife and husband is held as tenants by the entirety (Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001)). Nevertheless, practitioners often include the marital status of spouse co-owners in the deed to avoid confusion and to clearly state the intention to create a tenancy by the entirety.

The benefit of having one spouse’s interest automatically transfer to the other as a result of tenancy by the entirety ownership terminates with divorce. In such case, the one-time spouses automatically become tenants in common and the deceased spouse’s interest must go through the probate process unless the parties remarry each other and new conveyance of the subject property is made (§ 689.15, Fla. Stat.).

Terms of a marital settlement agreement may also speak to the manner in which the new ownership type.

However, there are several reasons why spouses may not wish to create the right of survivorship afforded by tenants by the entirety ownership.

For example, it may not further their estate planning goals, the marriage may be a later marriage and the spouses choose to keep their assets separate or when certain marital agreements (such as an antenuptial or prenuptial agreement) mandates a different ownership type.

In such cases, the spouse co-owners should include language in the transfer deed clearly indicating that the spouses are assuming ownership of the subject real property as tenants in common of the specific fractional interest owned by each spouse.

Enhanced Life Estates (a.k.a. Lady Bird Deeds) as an Estate Planning vehicle

In Florida, enhanced life estate deeds, commonly referred to as “Lady Bird” deeds, are also used to transfer real estate property without the need for probate after the death of the life tenant (14 Fla. Prac., Elder Law § 9:53 (2015-2016 ed.)).

Specifically, an enhanced life estate deed is an alternative form of ownership to JTWRS or Tenancy by the Entirety that differs from a typical life estate in that the life tenant (a person who has the right to some real estate for his lifetime) in an enhanced life estate maintains the right to convey or encumber the subject real property without the remainderman’s (the individual who receives the real estate when the life tenant dies) consent. A life tenant also retains the ability to unilaterally change the enhanced life estate (14 Fla. Prac., Elder Law § 9:56 (2015-2016 ed.).).

Another benefit of owning a life estate interest in real property is that it entitles the life tenant to certain real property-related benefits, such as a full homestead tax exemption while the life tenant is alive (§ 196.031, Fla. Stat.

After death considerations

While these ownership types are intended to avoid probate and allow for the “transfer” of property without further action, there are certain instances after the death of a joint owner in which the remaining owner(s) must act.

For example, the remaining joint owner (or remaindermen) should have the deceased owner’s name removed from the county’s real property tax bill by recording a redacted certified death certificate.

Additionally, oftentimes title companies helping to facilitate subsequent conveyances of the subject property require transfer deeds to be recorded reflecting sole ownership by the remaining joint owner. Also, prior to insuring a new, independent owner, a title insurance company may require one of the following:

• Record a redacted certified copy of the death certificate in the appropriate county’s public records;
• Record an affidavit of continuous marriage in the appropriate county’s public records reflecting that the tenancy by the entirety ownership was continuous before the deceased owner’s death and was never terminated by virtue of divorce;
• Include specific language regarding the death of the deceased joint owner or the life tenant in any subsequent transfer deed to a new, independent owner.

Conclusion

While vesting ownership in one of the above-referenced manners is in no way a complete replacement for a comprehensive estate plan, it does provide money and time-saving benefits.

Properly vesting ownership in real property is a necessary and valuable tool regardless of the size of one’s estate.

If your goal is to avoid the probate process and ensure that your real property accurately and efficiently pass to your loved ones, contact a qualified attorney today to discuss your options.