Taking Title as a Married Couple

What is a marriage?  A contract.  You do not necessarily think about the legal ramifications at the wedding, but who inherits the house if one of you dies, or who gets the house in the case of a divorce?  You can fix that with a prenuptial agreement, you can fix the contract.    However, just because it is a contract does not mean it is enforceable.  Talk to an attorney and figure out how to make it enforceable. Getting married can change your life.  It can also change how you hold property title.  So you and your boyfriend bought a house together and took title as Tenants in Common.  The only unity there is the Unity of Possession.  Either one of you can sell your interest in the house without notice to the other owner.  But if you get married, neither of you can break the tenancy nor otherwise convey the property without consent of the spouse. Married couples hold title as Tenants by Entirety.  This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that a married couple is one entity.  You cannot disinherit your spouse.  Your wife […] Read More

Tenancy Types & What Happens If Somebody Dies?

If you share home ownership, your rights of survivorship depend on what type of tenancy you have.  Your type of tenancy also affects your right to convey the property.  In Florida there are three basic co-tenancies to hold real estate title, and each of them has its own “unities.” Tenancy in Common – The only unity is Unity of Possession. Each person in the co-tenancy had the right to possess the property.  The parties can own the property in whatever percentages they want.  Any party can sell their interest to anyone without notice to the other owners. Joint Tenancy with Rights of Survivorship – There are four unities: Unity of Possession (just like Tenancy in Common) Unity of Time (the co-tenants must take title at the same time) Unity of Title (they must take title on the same instrument) Unity of Interest (each party has the same percentage interest as the others) Any of the co-tenants can break the joint tenancy with rights of survivorship by conveying their interest to anyone else.  Tenancy by Entirety – This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband […] Read More

Tenancies of Home Ownership

If you share home ownership, your rights to convey that property or to inherit it depend on what type of tenancy you hold.  In Florida there are three basic co-tenancies to hold real estate title, and each of them have their own “unities.” Tenancy in Common – The only unity is Unity of Possession. Each person in the co-tenancy had the right to possess the property.  The parties can own the property in whatever percentages they want.  Any party can sell their interest to anyone without notice to the other owners. Joint Tenancy with Rights of Survivorship – There are four unities: Unity of Possession (just like Tenancy in Common) Unity of Time (the co-tenants must take title at the same time) Unity of Title (they must take title on the same instrument) Unity of Interest (each party has the same percentage interest as the others) Any of the co-tenants can break the joint tenancy with rights of survivorship by conveying their interest to anyone else.   Tenancy by Entirety – This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband and wife are one entity. As […] Read More

Who Is on Title With You?

Who else is on your real estate title with you and what does that mean?  What if a co-owner dies or wants to sell their share?  It depends on your relationship.  The following are the three basic co-tenancies to hold real estate title in Florida and each of their unities. Tenancy in Common – The only unity is Unity of Possession.  Each person in the co-tenancy had the right to possess the property.  The parties can own the property in whatever percentages they want.  Any party can sell their interest to anyone without notice to the other owners. Joint Tenancy with Rights of Survivorship – There are four unities: Unity of Possession (just like Tenancy in Common) Unity of Time (the co-tenants must take title at the same time) Unity of Title (they must take title on the same instrument) Unity of Interest (each party has the same percentage interest as the others) Any of the co-tenants can break the joint tenancy with rights of survivorship by conveying their interest to anyone else.   Tenancy by Entirety – This includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that […] Read More

Wills & Spouses

Getting married can change your life.  It can also change what happens after your death.  You cannot disinherit your spouse…no matter how much you may want to.  Regardless of what your will may or may not say, your wife or husband is entitled to your homestead property when at death you do part (unless there is a properly executed marital agreement). Even if your will was made before you got married, your spouse is still entitled to half your estate, the same as if you had died without a will. You may be “ABD” (All But Divorced), but happily or unhappily, while you are still married, you and your spouse have a Tenancy by Entirety.  Tenancy by Entirety includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband and wife are one entity.  As long as the marriage is intact, neither can break the tenancy nor otherwise convey the property. If you want your children to inherit your homestead without having to share with your estranged spouse, then divorce may be part of your estate planning.  ‘Putting your affairs in order’ may literally mean ‘putting your affairs […] Read More

Consenting Adults & Married Couple’s Homestead

It takes two consenting adults to sell the homestead property of a married couple—the husband and the wife—even if only one name is on the deed. Regardless of whether or not your wife’s name is on the deed of your primary residence, she has to give her consent to sell the property.  You cannot sell your house to surprise her with an RV.  You have to get your wife’s permission to sell the house that she lives in. Even if you bought the house before you ever met her, put only your own money into it…your house is roped in when you tie the knot. You also cannot will your homestead to your kids and kick your wife out upon your demise.  You may be married till death do you part, but your wife is not going anywhere you die unless she wants to. Tenancy by Entirety includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband and wife are one entity.  As long as the marriage is intact, neither can break the tenancy nor otherwise convey the property.  However, upon the dissolution of the marriage, the […] Read More

Estate Planning as a Matter of Life & Death

So you are being sued for credit card debt in small claims court, do you move everything into your wife’s name?  This is where I like to encourage estate planning, not just to have your affairs in order at death, but also to be financially ready to deal with debt collection prior to assuming room temperature. Use the power of AND in your married relationship to spread risk to as many people as you can—like an insurance policy.  You are joined by AND (not OR), and that is important.  The Unity of Marriage subscribes to the legal fiction that husband and wife are one entity. If you get divorced later, you can divide the assets then, but while you are married, use the power of AND as Tenants by Entirety to secure your financial life. Read More

Moving on After Divorce

Divorce may be a stage in life, and some people go through it more than once.  Just when they know all there is to know and dislike about their spouse, they get married again.  In Family Law, that is not referred to as “repeat offender” (though maybe it should be in some cases).  But no matter how many times you and your spouse split, ‘Separated’ is not the same as ‘Divorced,’ especially when it comes to real estate ownership in Florida. You may be “ABD” (All But Divorced), but while you are still married, you still have a financial interest in your almost-ex’s real estate.  Happily or unhappily, you and your spouse have a Tenancy by Entirety. Tenancy by Entirety includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband and wife are one entity.  As long as the marriage is intact, neither can break the tenancy nor otherwise convey the property.  However, upon the dissolution of the marriage, the property is automatically held as Tenancy in Common. Things can get messy in divorce…and things can get messy if the divorce is not completed.  Do the math […] Read More