10 Effects of Marriage on Property Ownership Under Florida Law
Posted: February 14th, 2023
Love, Marriage, and Mortgages
February being the month of love, a discussion of marriage and real property ownership under Florida law seems appropriate.
Here are ten facts which every owner of Florida real estate should know and understand alongside some brief fact pattern examples explaining some of the ‘intercourse’ (pun intended) between love, marriage, and real property ownership under Florida law:
A married person cannot sell, mortgage, or ‘devise’ (make a gift by will or trust) their primary residence without the consent/joinder of the non-owning spouse
Florida's Constitution contains provisions which restrict the ability of a married person to sell, mortgage, or devise (make a gift by will or trust) the homestead property, or primary residence, without the consent of the owner’s spouse.
Married persons cannot sell or mortgage their homestead property without the non-owning spouse’s consent, meaning that the non-owning spouse must sign the deed or mortgage. This requirement of the Florida constitution is referred to as ‘joinder of spouse’ and simply means that the non-owner spouse must sign the deed or mortgage for it to be valid. Joinder of spouse is required even if the other spouse isn’t a co-owner of the property and/or is no longer residing on the property.
Example:
Eddy buys a home while single. A year later he gets married to Betty. Six months after the marriage, Betty moves out, but for whatever reason, they don’t divorce, and remain married.
Keep in mind that the mere filing of the petition for dissolution of marriage does not dissolve the marriage. Rather, the marriage remains intact until the court enters a final judgment of dissolution of marriage, which usually refers to and incorporates by reference a ‘marital settlement agreement’ detailing such terms as disposition of property and parental visitation rights and duties, etc.
Eddy cannot sell (or refinance the mortgage on) his homestead property unless Betty signs the deed (or mortgage). Why? Because a deed purporting to convey title to (ownership of) or a mortgage purporting to give a lien on homestead property is invalid under the Florida constitution unless the married owner’s spouse ‘joins’ in the conveying of title to or mortgaging of the property, i.e. signed the deed or mortgage.
Because the deed or mortgage would not be valid without ‘joinder of spouse,’ the title cannot be insured and the transaction should not proceed if the non-owning spouse is unwilling to sign.
If a transaction involving a married person proceeds without joinder of spouse on the deed or mortgage, it will likely result in a (successful) claim against the title insurance policy when the non-owning spouse discovers the transfer and seeks to have it nullified in court. This would require a lawsuit by the non-owning spouse to “quiet title” to the property, which would require that the purported “new owner” who was the grantee on the “deed” be joined in the action as a defendant and served with process. Then, when the new owner is served with the quiet title lawsuit, the new owner will file a claim with the title insurance underwriter (if they have a title insurance policy), and most likely the title insurance underwriter will pay a settlement amount to the non-owner spouse in exchange for a new, valid deed. I put “new owner” and “deed” in quotes because the attempted ‘deed’ signed by the owning spouse without joinder of the non-owning spouse is invalid under law.
Note: People often loosely say that they are ‘getting’ a mortgage but what they really mean (whether they realize it or not) is that they are getting a loan, for which the lender requires that they give: 1. A promissory note which is a personal guarantee to repay the loan, and 2. A mortgage on the collateral property, i.e. the property being purchased to secure repayment of the loan. It is sometimes said that the buyer/borrower is “giving” a note and mortgage, but it is not a “gift”; it is required consideration for the loan. The note and mortgage are legal instruments (documents) which evidence and secure/collateralize the debt. The note is said to be evidence of the debt, and under Florida law, the mortgage is a “specific lien” on the mortgaged property. Both the note and mortgage are said to be given as two of many conditions in exchange for the loan. Other common conditions will include securing homeowners insurance and that the mortgage be insured as a first mortgage by a title insurance company.
Clarification/Distinction:
On a mortgage refinance transaction by Eddy, Betty must sign the mortgage but she does not need to sign the (promissory) note, which would make her personally obligated on the debt.
Foreclosure:
In the event of a foreclosure, the foreclosing mortgage holder would need to include Betty (or Eddy’s future but yet-unknown spouse at the time of a future foreclosure action) in the foreclosure action as an interested party due to her status as Eddy’s spouse. However, they could not obtain a money judgment against her to be enforced against any property owned by Betty because she didn’t sign the promissory note–only the mortgage–so the only property the lender can go after in Betty’s regard is the mortgaged property.
In foreclosure cases, you will see a defendant named “Jane Doe” or “John Doe,” the unknown spouse of the primary defendant. The spouse of the property-owning spouse (who is also the primary defendant in the foreclosure action) has rights that must be addressed by the court and thus a married person’s potential unknown spouse must be included as a defendant. At the time of filing of the action, the plaintiff does not know with certainty whether the primary defendant owner is married.
A married person cannot buy a new homestead with mortgage financing unless their spouse signs the mortgage
The rule stated above in Paragraph 1 about married persons not being able to sell or refinance the mortgage on their homestead property without their spouse’s consent (“joinder of spouse”) also applies to prevent a married person from purchasing a new homestead property with a new mortgage loan.
Even though the purchasing spouse does not yet own the property that they are trying to buy until they are given the mortgage loan, they nevertheless become the owner of the property simultaneously at closing; and being a married person, they cannot give the required mortgage on the property without their spouse’s consent, i.e. unless the non-owning spouse signs the mortgage.
Example:
Betty, still married to Eddy but living separately, wants to buy her own primary residence in Florida. Because she is still married to Eddy, she cannot obtain a new mortgage loan unless Eddy agrees to sign the new mortgage at closing. Otherwise, it is not a valid mortgage under Florida law and the lender cannot obtain a lender’s title insurance policy on its mortgage, which is a basic requirement of any institutional mortgage loan.
Clarification:
Eddy does not need to sign the (promissory) note–which would make him personally liable for Betty’s debt–for Betty’s mortgage purchase translation to proceed. Rather, Eddy only has to sign the mortgage. By signing the mortgage, Eddy would only be consenting to the mortgage being a lien on Betty’s new homestead property, but does not personally guarantee the debt because he is not signing the promissory note.
However, as in the refinance example, in the event of a foreclosure, the foreclosing lender would need to name and join Eddy as an interested party in the property, and could “foreclose” any interest or rights he might have in the property, but could not obtain a money judgment against him to be enforced against any property owned by him.
A married person can purchase a new homestead without their spouse’s cooperation, but they have to pay cash
A married person may buy a new homestead property (primary residence) without the non-purchasing spouse’s consent, but they will need to pay cash because as indicated above, a married person cannot give a mortgage on the homestead property to the lender without the joinder of his or her spouse.
Even in the midst of a dissolution action, there is nothing to prevent a married person from buying a new property in his or her own name and establishing it as his or her homestead, so long as they pay cash.
Example:
Betty, either not wishing to involve Eddy or as a result of Eddy’s refusal to sign a mortgage to allow the purchase to proceed, buys the home with cash from savings. No problem.
Caveat:
In a dissolution of marriage action, absent a prenuptial or postnuptial agreement between the spouses to the contrary, the non-purchasing spouse may be able to assert rights in the purchasing spouse’s new homestead property under Florida’s equitable distribution regime; nothing in a title insurance policy would or could protect the purchasing spouse from a claim.
None of the above restrictions on selling or mortgaging homestead property apply to dealing with non-homestead property
A married person may buy, sell, or mortgage non-homestead real estate (investment property or second/vacation home) in his or her own name without any involvement of the non-owning spouse.
Example:
Eddy owns a rental property (separate from the one he currently lives in from prior examples and in which Betty lived with him after their wedding). Eddy can mortgage or sell his rental property without Betty’s involvement or permission. Betty is not required to sign the deed or mortgage to make it valid under Florida law because there is no restriction on a married person dealing with non-homestead property.
Title to/ownership of real property does not automatically pass to surviving spouse upon death of owning spouse
Title to (ownership of) a married person’s real estate does not pass automatically to the surviving spouse. How and to whom ownership of a married person’s property passes upon the owner’s death depends on a number of factors, including:
- Whether the particular property in question was the homestead property of the deceased spouse or whether it was secondary property i.e. investment property/second home;
- Any survivorship rights on the deed (for example, joint tenants with rights of survivorship or life estate in favor of someone other than the surviving spouse);
- The terms of the deceased owner’s will, if the owner had a valid will at the time of death, and if any of there were no survivorship rights on the deed;
- State law referred to as “intestate succession;”
- Spouse’s elective share, which is a right of the surviving spouse to elect to take a share of the deceased spouse’s estate, even if those assets were left in the will to someone else.
Example:
Eddy from our previous examples, still married to Betty, owns two houses in his name alone. One is his homestead property (primary residence) and the other is a rental property. There are no survivorship rights on the deed to either of Eddy’s two properties. Eddy dies while still married to Betty.
Probate Required:
Because Eddy died owning the properties in his own name (in his “individual capacity”) the determination of ownership to Eddy’s properties must be determined by a Florida probate court, regardless of whether Eddy has a valid will or not. A will is of no legal force unless and until admitted into probate by the court after examination for compliance with proper execution formalities and notice to interested parties with opportunity to contest its validity, etc., affording sufficient due process.
For example, someone could prove that the will was produced by undue influence. Further, a will could be valid but have ineffective provisions or be affected by elections made by the surviving spouse (as explained below).
If Eddy has no valid will (or the will is ineffective as to the certain provisions such as the disposition of the homestead property, as explained below), then Eddy’s properties will pass in accordance with statute (“intestate succession”).
Under intestate succession (Section 732.102 Florida Statutes), Betty’s share of Eddy’s property will depend on whether Eddy was survived by any descendants (children, grandchildren, etc.), whether those descendants were mothered by Betty, and whether Betty has any children not by Eddy.
Bottom line: Betty does NOT automatically receive Eddy’s properties simply by virtue of being his surviving spouse.
A married person can add their spouse to the ownership of property held in just one spouse’s name
A married person can add their spouse as a co-owner by making a new deed from the property-owning spouse to both spouses as a married couple. Section 689.11 of the Florida Statutes provides that this can be accomplished by the owning spouse signing a new deed from himself or herself over to the married couple.
Whether to add one’s spouse to one’s real estate owned in one’s individual capacity is an individualized decision dependent upon the myriad of factors unique to the relationship between the spouses. All else being equal, there are significant benefits to adding one’s spouse to title to one’s real estate so that the property is held as a married couple under an estate at law referred to as ‘tenancy by the entireties’ or an ‘estate by the entirety’ (there are many variations of the wording of this manner of holding title which can only exist between a married couple). These benefits include automatic survivorship rights and limited but significant immunity from judgments.
Once created, the estate by the entirety cannot be severed by either spouse acting alone (but is severed upon dissolution of marriage).
Example:
Eddy from our prior examples owns two properties in his name alone, one being his current homestead and one being a rental property. Eddy reconciles with Betty and adds Betty to title to (ownership of) both his homestead and his rental property.
A year later, Eddy defaults on a business loan and is sued by the creditor, which obtains a money judgment against him. The money judgment would not have attached to Eddy’s homestead property because of Florida’s homestead exemption from creditors.
However, it would have attached to Eddy’s rental property if he had not added Betty to title (ownership) of the rental because when a married couple owns property together, the manner of ownership or “estate” is referred to as “tenants by the entirety’’ or “entireties,” and it features an immunity to a judgment against either spouse alone. Rather, a judgment must be against BOTH spouses to attach to property thus held.
This limited immunity to judgment extends beyond homestead property to non-homestead property, but does not protect against a lien of the federal government, such as a federal tax lien. So long as Eddy and Betty stay continuously married, a (normal, non-IRS) money judgment will never become a lien against the property. If they divorce, then the judgment will attach to the half interest owned by the debtor.
Example:
Eddy reconciles with Betty and adds Betty to title to (ownership of) both his homestead and his rental property. A year later, Eddy dies. Betty receives both properties automatically without any need for probate (so long as she and Eddy never divorced prior to Eddy’s death).
Betty’s sole ownership of the property is established by simply recording Eddy’s death certificate and an affidavit attesting to the continuity of the marriage without any divorce. If they had divorced after Eddy had added Betty to title, then they would have ceased to be tenants by the entirety and instead would have been tenants in common, and Eddy’s half interest would need to go through the probate process.
Most married persons should (and do) take title together as a married couple
As a practical matter, most people who are married at the time of purchase own the marital home in both names as a married couple. It’s the simplest thing to do, but it is also usually most reflective of both spouses’ intentions, i.e., that if either dies, the survivor should have the property without any strings attached (other than the mortgage, if any).
If you are concerned about how your home is titled, the quickest way to confirm whether your home (or someone else’s) is titled is to pull a copy of your deed from the county recorder’s office (usually the clerk of the court). The easiest route to do so is to go first to the website for your local county property appraiser’s office and find your property’s profile. Within your property’s online profile on the property appraiser’s website there should be a sales history with links that will take you directly to where your deed is recorded on the county recorder’s website, where it is usually available for a free download or print.
First, you want to see if both names are there. Second, there should be an indication of the marital relationship. Any of the following are acceptable to establish the estate by the entirety:
- Eddy and Betty, husband and wife.
- Betty and Eddy, wife and husband.
- Eddy Smith, and Betty Smith, his wife.
- Eddy Smith and Betty Smith, a married couple.
Florida law encourages marital ownership of real property by providing two major benefits from owning real property together as a married couple.
- Married couples owning together enjoy survivorship rights between the spouses.
- Married couples owning together enjoy limited protection from judgments against either spouse.
Neither spouse acting alone can sever an estate by the entirety (jointly owned marital property)
Once an estate by the entirety is created, neither spouse acting alone may sever the estate. The rule makes sense because to allow the estate by the entirety to severed by either spouse unilaterally prior to the entry of a final judgment of dissolution of marriage would invite chaos–one spouse could sell their half interest to a third party who could threaten a partition action if the spouse remaining on title doesn’t acquiesce to a sale of the property to a third party (or to the person who bought from the other spouse who sold the half interest).
This feature (inability of either spouse to break tenancy by entirety) helps ensure that (among other things) any jointly held marital property is equitably distributed under court supervision within a dissolution proceeding rather than allowing a spouse to sell off a half interest while the dissolution is pending, when people are more vulnerable to making poor long term financial decisions and are likely to be already short on liquidity due to attorney’s fees and making alternative housing arrangements (for at least one of the spouses).
Once an estate by the entirety is severed (as by dissolution of marriage) the former spouses become “tenants in common,” which allows for either owner to sue for partition, i.e. a court ordered sale of the property, not unlike a foreclosure sale, but with some nuances.
Example:
Eddy and Betty own a vacant lot together as husband and wife. Eddy tries to sell his half interest to his college friend Tom, with Tom planning to threaten Betty into selling out to him at a discount or he’ll sue for partition. Any deed from Eddy to Tom is void. Eddy cannot sell a half interest because neither spouse can sever a tenancy by the entirety.
Corollary:
Neither spouse can give a mortgage on property held as tenants by the entirety (a married couple). Both spouses must sign the mortgage for it to be valid.
No “Palimony” or “Common Law Marriage”
Florida does not recognize either “palimony” or common law marriage (after 1967), so it’s hard to get “married” or have any of the accompanying financial baggage by accident, i.e. without actually intending to get married.
Example:
Eddy owns a home. His girlfriend of 25 years, Betty, lives with him, cooks for him, and does his laundry every day, etc. Eddy dies without a will and his three adult children inherit the home. Betty has no rights to the home (or any of Eddy’s other property).
Florida is Not a “Community Property” State
Florida is NOT a community property state. Spouses can and do own property separately from the other spouse. Among other things, this means that if you are lending money to one spouse you don’t automatically get to collect against the property of the other spouse if the debtor spouse defaults on the debt.
Corollary:
You (and your separate property) are not liable for your spouse’s debts, unless you are also a co-borrower or you co-sign or guarantee the debt. Often only one spouse signs the promissory note even though the property is being titled in both spouses names. This is fine. Both spouses sign the mortgage, and the home can be taken from both spouses, but only one spouse is personally liable.
Rather than “community property,” Florida follows “Equitable Distribution” in dissolution of marriage. This means that the court has broad discretion in allocating the property owned by just one spouse if it brings about a more equitable outcome.
Example:
Eddy and Betty are married. Eddy owns the marital home in his own name from before they got married. Eddy decides to go to law or medical school. Betty works full time and pays all the bills while Eddy is in school. Once Eddy graduates, he files to divorce Betty to marry one of his classmates. The court is likely to require that Eddy pay Betty from the proceeds of any sale of the marital home even though it is owned by Eddy only. This might include requiring Eddy to refinance the mortgage on the property or to sell the property to pay Betty her “fair share” if he is unable to do so in cash. The court has broad discretion in a dissolution of marriage action, and can require distribution of property owned by just one spouse.
Navigate the Differences With Your Title Company
In a nutshell, there are several provisions in place that alter the way married couples can buy, hold, and sell Florida real estate as compared to when they were single. These provisions aim to protect the property owner in a variety of life scenarios. If you’re recently married and in search of a new home, or already own a home in your name, get in touch with the professionals at Echelon Title to learn how to best serve yourself and your property. Call us at 321-450-4770.