Two people buy a house together and assume that if one of them passes away, the other simply keeps it. In Florida, that is sometimes true and sometimes not, and the difference comes down to a phrase on the deed rather than the relationship between the owners.
Owning as joint tenants with right of survivorship produces the automatic result. Owning without it produces something else.
Florida does not assume survivorship on a deed
Many states treat joint ownership of real estate as carrying survivorship by default. Florida does the opposite. When a deed conveys property to two or more people and says nothing further, they hold it as tenants in common, each with a separate share that passes under a will rather than to the other owner.
Creating survivorship on a deed requires the document to say so. Married couples are the exception: property conveyed to a married couple is presumed to be held as tenants by the entireties, a form available only to spouses that carries survivorship built in.
What survivorship does
When one joint tenant passes away, that person's interest ends, and the surviving owners hold the whole, with no probate needed for the transfer. That is the main reason people choose it.
It also outranks your will. A share held with survivorship goes to the surviving owner regardless of what the will says about that property.
The arrangement postpones probate rather than eliminating it, since the last surviving owner's share still moves through probate unless something else directs it. Our look at what happens to a Florida home that sits outside the plan covers that stage.
What survivorship does not do
It offers no protection from creditors. While the owners are living, a creditor of any one of them can reach that owner's interest.
It is also not permanent. A joint tenant can generally convey their interest during life without the others agreeing, which ends survivorship as to that share. Whoever receives it holds as a tenant in common, while any remaining joint tenants keep survivorship between themselves.
On taxes, only the share belonging to the owner who passed away receives a new cost basis. The survivor's own share keeps its original basis, which matters when the property is sold.
For married couples, the exact wording matters
Entireties ownership is the stronger form for spouses. It carries survivorship and shields the property from a creditor of one spouse acting alone, though not from a creditor both spouses owe. Plain survivorship between joint tenants offers no such shield.
Because Florida presumes entireties ownership for a married couple, a deed that instead recites survivorship language raises a question. The courts have not settled whether that phrasing alone overrides the presumption, which is reason enough to state the intended form on the deed.
Account paperwork follows a related rule. Where the institution offers an entireties option and the couple selects survivorship instead, that choice is generally treated as giving up entireties treatment. Where entireties was never offered, a survivorship designation alone does not have that effect.
Bank accounts run the other way
The deed rule does not carry over to the bank. A Florida deposit account held in two or more names is presumed to pass to the surviving owners, even when nothing on the signature card mentions survivorship. That presumption can be overcome, but the starting point is the reverse of the rule for real estate.
That catches people who add an adult child to an account for convenience, so someone can help with bills, and assume the balance will be divided under the will. Unless the paperwork says otherwise, the surviving owner may keep it.
A divorce converts entireties ownership into a tenancy in common automatically, ending both the survivorship and the creditor protection.
Key Takeaways
- A Florida deed creates a tenancy in common unless it expressly provides for survivorship.
- Property conveyed to a married couple is presumed to be held as tenants by the entireties.
- Survivorship moves the property without probate, overrides what a will says about it, and defers rather than avoids probate.
- Survivorship provides no creditor protection, and a joint tenant can usually end it by conveying their interest.
- Entireties ownership adds protection from a creditor of one spouse, and a divorce ends it.
- Joint bank accounts follow the opposite default: survivorship is presumed unless the paperwork says otherwise.
Checking how your deed reads
Most people never look at their deed again after closing, though the wording on it determines where the property goes and what protection comes with it. Whether survivorship suits your situation depends on who owns the property with you, whether you are married, and what the rest of your plan does. An estate planning attorney can read the deed alongside everything else you own.
E.P.P.G. Law of St. Johns works with property owners in St. Augustine, Palm Coast, and St. Johns County. Heather Maltby reviews how a deed reads as part of putting an estate plan together.
Get a free consultation to learn more.
References: Washington Post (July 6, 2020) "Changing a home title from 'tenants in common' to 'joint tenants'" and The Florida Senate, Chapter 689 Section 15, Estates by survivorship