Everything You Want to Know about Florida Tenancy by the Entireties

Probate Information • Mar 10, 2021

**Whether a spouse inherits a deed or it goes to the family in a probate are important. “***Spouses fight with step-children***” says litigation and appellate attorney John Pankauski. “***Knowing the forms of Florida ownership is important. Millions hang in the balance*.”

So, what if two spouses co-own real estate as “husband and wife” or “as spouses”? Does that create a presumption of a Florida tenancy by the entireties with a right of survivorship? And what about personal property like gold or Rolexes or other valuable assets? If two spouses in Florida take title to personal property, is there a presumption of a right of survivorship such as tenants by the entireties? Consider reading two, maybe three, Florida cases to learn all you need to know (almost !) about tenancy by the entireties. We have previously provided legal commentary on Florida joint bank accounts, now read about real estate in Florida and husbands, wives and spouses.

Millions, if not billions, of dollars in Florida property are held by spouses. Probate lawyers and family members want to know if that million dollar Miami mansion goes to probate or to the surviving spouse.

Valuable Survivorship Rights for Florida Wives, Husbands

So, there is a lot to know about tenancies in common and joint tenancies. A co-tenant owns a percentage or part of the whole. This is typically based upon their contribution of the purchase price. Sometimes, it’s by agreement of the co-tenants. If a co-tenant dies, his or her share “goes” to their estate. BUT, a joint tenancy creates a survivorship feature, automatically by operation of law. In Florida, the status of a wife or husband, a spouse, is special. You get special rights ! And I’m not necessarily talking about homestead rights, or elective share. If two spouses take real estate in Florida as “husband and wife”, it creates a special ownership. There is a legal presumption that the Florida deed creates a tenancy by entireties. This is also known as tenancy by the entireties or tenants by the entireties. It’s a form of joint ownership between spouses. And if you are a spouse, you should know all about this very valuable Florida property right. Read the 4th District Court of Appeal case Bridgeview Bank Group v. Callaghan. It’s a 2012 case from the Palm Beach appeals court. This special inheritance right for a Florida spouse often causes angst with heirs. If you are probating an estate, does the real estate go to the surviving spouse or to the estate?

Spouses get survivorship benefit with T by E

Take the time to also read the 3rd District Court of Appeal opinion in Murphy v. Osorio. This Miami-Dade appeals court opinion was handed down January 2, 2020. (The Rehearing was denied January 29, 2020). Look at Footnote 8 on the last page. See what this Florida appeals court says about tenants by the entireties. There’s also an important case that you should not miss: Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Florida, 2001). Spouses like a husband or a wife get survivorship benefits when a deed is written a certain way. “If the deed shows a contrary intent” warns Florida litigator John Pankauski “then it’s a different story.” He should know. Family members like heirs, and adult sons and daughters, call Pankauski about interpreting a deed. When a parent dies, where does the real estate go: to the probate or to mom or dad’s 2nd or 3rd spouse? But, be careful with other valuables: there is no such presumption for personal property, gold, Rolexes, cars, artwork or valuables. Talk to a serious real estate litigator or a probate litigation law firm who actually tries these cases. Don’t fall for a probate or real estate lawyer who settles everything. Some say they go to court a lot, but they never try cases.