As we discussed in my initial blog, our first way point on our journey through the maze of estate planning is the effect that the joinder of two persons in matrimony has upon the ownership of property.
Tenancy by the Entirety
In Florida, there are three types of concurrent ownership by two or more persons: a) Joint Tenancy; b) Tenancy in Common; and c) Tenancy by the Entirety. A Tenancy by the Entirety can only be vested in married persons. Even though a conveyance does not specify that the grantees take title by an Estate by the Entireties, and even though they are not referred to as husband and wife in the deed, a Estate by the Entireties is created if a) the grantees named in the deed are in fact husband and wife; and b) the deed contains no contrary intent to create another type of estate. Espenship v. Carter, 514 So.2d 1108 (Fla. 1st DCA 1987).
Right of Survivorship
One critical legal distinction between a Tenancy by the Entireties and a Tenancy in Common is that a Tenancy by the Entireties carries with it the right of the surviving spouse to sole ownership of the property upon the death of the spouse without the necessity of going through the judicial process of probate. This is called the ‘right of survivorship.’ When my father passed away in 1982 all of the property which he owned was jointly owned by my father and his wife, my mother. Therefore, upon my father’s death, there was no need for my mother to go through probate. By recording a death certificate in the public records for each county wherein they owned real estate, proper notice effectuated the legal transfer of ownership from husband and wife to the surviving spouse, my mother. Similarly, by providing a death certificate to each banking institution, the Department of Motor Vehicles and the Department of Natural Resources, that same transfer of ownership was effectuated regarding jointly held bank accounts, jointly held motor vehicles and marine vehicles.
So you can see how useful it is for estate planners to utilize the titling of property, whether real property or personal property, in the names of husband and wife when the desired effect is to have the property transfer to the surviving spouse alone upon the death of their partner.