How Should Married Couples Title Real Estate Property?

When married couples invest in property, it’s usually a very exciting time. But amidst all the excitement, it’s imperative that couples protect their new home with a title. The right title can simplify even the worst of situations.

There are three kinds of titles that married people can claim in Florida – tenants by the entirety, tenants in common and joint tenants with right of survivorship. Although these titles sometimes act the same, they have their own distinct advantages and disadvantages.

Tenants by the Entirety

Tenants by the entirety titles are reserved for married couples only. Each spouse essentially owns 100 percent of the property, individually. While this may seem improbable, it becomes a powerful defense if tragedy should befall one partner. In the event of death, the ownership rights immediately transfer over to the surviving partner. This avoids probate altogether, which is a process of determining the validity of a will and other legal documents.

Another benefit of tenants by the entirety is that creditors cannot automatically seize the home to recover any debts of the recently deceased. This type of title requires both parties to consent to the sale of their share, since both own 100 percent. When the surviving spouse inherits the total property, they can decide whether or not to sell the home to cover debts.

One major downside is in the event of divorce. If this ever happens, the title is essentially dissolved, since marriage is a requirement. It then becomes an asset that is potentially fought over, which can bring divorce proceedings to a screeching halt. If you are unsure which is right for you, Marina Title can help.

Joint Tenants with Right of Survivorship

Joint tenants with right of survivorship (JTWROS) titles are similar to tenant by the entirety titles in that, when one spouse dies, the other is immediately granted full ownership. Due to this, JTWROS also avoids probate, saving time and money. With this particular type of title, however, each partner only owns part of the home. Each individual owns a share that can be sold or altered without the consent of the other. Depending on the arrangement, these shares may or may not be equal.

Because property is controlled by separate shares, creditors can seize control of part of it to cover debts. This is applicable even after death when the shares have passed on to the other partner.

Divorce can be tricky with joint tenancy as well. If one partner wants to sell the property and move on, but the other wants to maintain ownership, it can become a sticky legal battle. In other cases, it can be a simple process of selling all shares to one partner or selling to a new partner.

Tenants in Common

With tenants in common titles, property can be owned by an unlimited number of individuals. Similar to JTWROS titles, tenants in common allows shares to be divided unequally. These shares can be freely transferred to other owners both during life and via a will. Despite the size of an individual’s share, each owner has the right to occupy and use all of the property.

With tenants in common, there are no rights of survivorship. In the unfortunate case of death, each ownership or interest can be separately mortgaged, sold or willed to another. This means that a probate of the estate of the deceased is required in order to transfer ownership.

Although there are certain risks with tenants in common, this form of a co-ownership title maximizes the buying and selling power of each owner. If a married couple can agree upon an allocation of rights and responsibilities, tenants in common is a viable option.

All three titles have advantages and disadvantages for married couples, making it wise to seek the advice of a real estate lawyer any time you buy property. Our experts know the ins and outs of property titles and can help you make the right choice for your situation. For more information, drop us a line at (305) 901-5628 or reach out to us by email at [email protected].