Joint Property Ownership in Florida

How you hold title to property in Florida directly affects what happens to that property when you die, who can claim it during your lifetime, and whether it must pass through probate. Florida recognizes several forms of joint ownership, each with distinct legal consequences for co-owners, surviving family members, and creditors. At the Law Offices of Albert Goodwin, PA, we help Florida residents understand their ownership options and structure title in a way that supports their estate planning goals.

Tenancy in Common

Tenancy in common is the default form of co-ownership in Florida. When two or more people acquire property together and the deed does not specify a different form of ownership, the law presumes they hold title as tenants in common.

Each tenant in common owns a distinct, undivided fractional interest in the property. These interests do not have to be equal. One co-owner might hold a 60 percent interest while the other holds 40 percent. Each owner may sell, mortgage, or transfer their share independently without the consent of the other co-owners.

What happens at death: When a tenant in common dies, their share does not pass automatically to the surviving co-owners. Instead, it becomes part of the deceased owner's estate and passes according to their will or, if there is no will, under Florida's intestate succession laws. This means the deceased owner's share must go through probate before it reaches the intended beneficiaries.

Tenancy in common is common among business partners, siblings who inherit property together, and unmarried individuals who purchase real estate jointly. Because each owner's interest passes through their own estate, this form of ownership allows each co-owner to leave their share to whomever they choose.

Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship is a form of co-ownership where the surviving owner or owners automatically receive the deceased owner's share upon death. Unlike tenancy in common, the deceased owner's interest does not pass through probate or under their will. The transfer happens by operation of law the moment the co-owner dies.

In Florida, joint tenancy with right of survivorship must be expressly stated in the deed or account agreement. If the document creating the co-ownership does not include specific survivorship language, the law presumes a tenancy in common. Simply titling property in two names is not enough to create survivorship rights.

What happens at death: The surviving joint tenant receives the deceased owner's interest immediately and automatically. The property does not pass through probate, is not governed by the deceased owner's will, and is not subject to claims by the deceased owner's creditors (with limited exceptions). The surviving owner typically needs only to record a death certificate and an affidavit to clear title.

Joint tenancy can be a useful probate avoidance tool, but it carries risks that many people overlook. Adding someone as a joint tenant gives them an immediate ownership interest in the property, which may trigger federal gift tax consequences if the value exceeds the annual exclusion amount. The property also becomes exposed to the new joint tenant's creditors, divorcing spouse, and legal judgments.

Tenancy by the Entirety

Tenancy by the entirety is a special form of joint ownership available only to married couples in Florida. When married spouses acquire property together, Florida law presumes the ownership is held as tenants by the entirety unless the deed states otherwise.

This form of ownership includes automatic right of survivorship, meaning the surviving spouse receives full ownership when the other spouse dies. But tenancy by the entirety goes further than ordinary joint tenancy by providing significant creditor protection. A creditor who holds a judgment against only one spouse generally cannot force the sale of property held as tenants by the entirety or place a lien on it. Both spouses must be liable on the debt for a creditor to reach the property.

What happens at death: The surviving spouse automatically receives full ownership of the property outside of probate. The transfer happens by operation of law and does not require court involvement. Combined with Florida's homestead protection laws, tenancy by the entirety gives married couples substantial protection for their primary residence and other jointly held assets.

Tenancy by the entirety in Florida applies not only to real estate but also to personal property, including bank accounts, investment accounts, and tangible property. This broader application of entireties protection distinguishes Florida from many other states.

Joint Ownership and Probate

Joint ownership with survivorship rights is one of the simplest ways to keep an asset out of probate. When property passes automatically to a surviving co-owner, there is no need for a court to supervise the transfer. However, joint ownership only avoids probate at the first death. When the surviving owner eventually dies, the property will need to pass through their estate, potentially requiring probate at that point unless other planning is in place.

For married couples, tenancy by the entirety avoids probate between spouses but does not address what happens after the surviving spouse dies. A comprehensive estate plan typically combines joint ownership with other tools such as a revocable living trust, beneficiary designations, or lady bird deeds to ensure that assets avoid probate at both deaths.

Disputes Between Co-Owners

Co-ownership can lead to disagreements, particularly when the co-owners are not spouses. Common disputes include disagreements over whether to sell the property, how to divide expenses for maintenance, taxes, and insurance, and whether one co-owner is using the property in a way that excludes the others.

When co-owners cannot agree, Florida law allows any co-owner to file a partition action. A partition action asks the court to divide the property physically (if possible) or order it sold and the proceeds divided among the owners according to their respective interests. Partition actions are common among siblings who inherit property together and cannot agree on what to do with it.

Even short of a partition action, disputes over shared expenses can create significant friction. Under Florida law, a co-owner who pays more than their share of property taxes, mortgage payments, or necessary repairs may be entitled to contribution from the other co-owners. These claims are often resolved in the context of a partition proceeding, where the court can make equitable adjustments to account for each party's contributions and use of the property.

Risks of Joint Ownership

While joint ownership offers simplicity and probate avoidance, it carries several risks that should be carefully considered:

• Unintended disinheritance. When property passes by survivorship, it overrides whatever the deceased owner's will says. A parent who adds one child as a joint owner on a bank account for convenience may unintentionally disinherit the other children, because the account will pass entirely to the joint owner regardless of what the will provides.
• Gift tax consequences. Adding a non-spouse as a joint owner of real property is treated as a gift for federal tax purposes. If the value of the gifted interest exceeds the annual gift tax exclusion, the original owner must file a gift tax return. Large gifts may reduce the owner's lifetime estate and gift tax exemption.
• Creditor exposure. Once someone is added as a joint owner, the property becomes subject to that person's creditors. If the joint owner is sued, goes through a divorce, or files for bankruptcy, the property may be at risk. This is true even if the original owner intended the joint ownership only as a convenience.
• Loss of step-up in basis. When property is inherited through an estate, the beneficiary generally receives a step-up in the property's tax basis to its fair market value at the date of death. This can eliminate capital gains tax on appreciation that occurred during the deceased owner's lifetime. With joint ownership, the surviving owner may only receive a partial step-up, resulting in a larger capital gains tax liability when the property is eventually sold.
• Loss of control. A joint owner has equal rights to the property. For bank accounts, either owner can withdraw the entire balance. For real estate, a joint owner can file a partition action to force a sale. The original owner gives up sole control the moment joint ownership is created.

Joint Bank Accounts and Survivorship

Joint bank accounts are one of the most common forms of joint ownership. Florida law provides that funds in a joint account belong to the parties in proportion to their net contributions unless there is clear and convincing evidence of a different intent. However, upon the death of one account holder, the surviving account holder generally receives the funds automatically if the account agreement includes survivorship language.

Many families open joint bank accounts so that an adult child can help an aging parent manage finances. While this can be convenient, it creates the risks described above. The account becomes exposed to the child's creditors, the funds may pass entirely to that child at the parent's death regardless of the will, and the other siblings may have no legal claim to the money.

A safer alternative in many cases is to use a durable power of attorney, which gives the child authority to manage the parent's finances without creating an ownership interest in the accounts.

It is also important to understand the distinction between convenience accounts and true joint accounts. A convenience account, authorized under Florida Statutes Section 655.80, allows a designated person to make transactions on behalf of the account owner without granting them any ownership interest. Upon the account owner's death, the funds in a convenience account do not pass to the convenience signer. They become part of the deceased owner's estate. If the goal is simply to allow someone to help with bill paying and banking, a convenience account avoids many of the risks associated with joint ownership.

Severing Joint Ownership

A joint tenancy with right of survivorship can be severed by any joint tenant transferring their interest to a third party or to themselves as a tenant in common. Once severed, the survivorship feature is destroyed and the co-owners hold title as tenants in common. Tenancy by the entirety cannot be severed unilaterally because it requires the consent of both spouses. Divorce automatically terminates a tenancy by the entirety, converting it to a tenancy in common unless the parties agree otherwise.

Severing a joint tenancy can be useful when the co-owners' relationship changes or when estate planning goals evolve. However, it should be done carefully and with an understanding of the tax and legal implications, including potential gift tax consequences and the loss of creditor protection.

Joint Ownership and Estate Planning

Joint ownership can be a useful component of an estate plan, but it should not be the only strategy. Relying exclusively on joint ownership can lead to unintended results, tax problems, and family disputes. A well-designed estate plan considers how each asset is titled and uses the appropriate combination of ownership structures, trusts, beneficiary designations, and other tools to achieve the owner's goals.

For many Florida families, a combination of a revocable living trust for real estate and investment accounts, beneficiary designations for retirement accounts and life insurance, and tenancy by the entirety for assets held between spouses provides the most effective and flexible structure. Each asset should be evaluated individually to determine the best form of ownership given the owner's circumstances, family dynamics, and long-term goals.

Before adding anyone as a joint owner on real estate, bank accounts, or other assets, it is important to understand the full legal and tax implications. What seems like a simple solution can create complications that are difficult and expensive to undo.

Contact the Law Offices of Albert Goodwin

If you have questions about joint property ownership in Florida, need help resolving a co-ownership dispute, or want to ensure your assets are titled correctly as part of your estate plan, the Law Offices of Albert Goodwin, PA can help. We advise clients on all forms of property ownership and their implications for probate, taxes, and asset protection.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.