Real Estate Titling Issues for Same-Sex Married Couples in Florida

When a couple is married and both spouses take title at the same time, this is known as a tenancy by the entirety. With this type of title, one spouse must consent before the other spouse can transfer an interest in the property to someone else. Tenancies by the entirety offer other protections specifically tailored to protect a marital estate.

The issue of whether Florida will recognize the concurrent estate of tenancy by the entirety for same-sex married couples remains to be resolved in the Florida courts. However, the North American Title Insurance Company’s (NATIC) has issued guidelines for dealing with property rights and tenancy by the entirety issues for same-sex married couples as follows:

• If a property owner states that he or she is married to a same-sex spouse, joinder of the spouse is required for any conveyance or mortgage of homestead property.
• When a same-sex married couple is purchasing property, the deed may reflect that the parties are married. (Example: Jane Doe and Kathy Doe, a married couple). The buyers, or their legal counsel, must make this decision and advise the title agent how they want to take title.
• When title is vested in a married same-sex couple, judgments against one spouse should be treated as having attached (instead of relying on a tenancy by the entirety).
• When title is vested in a married same-sex couple, with no mention of the right of survivorship, and one spouse dies, probate should be required instead of relying on a tenancy by the entirety. Same-sex married couples can avoid probate by executing corrective deeds if the original deed has been issued to only one of the spouses as owner.