With the advent of Florida Clerks of Court issuing marriage licenses to same-sex couples at the beginning of 2015, underwriters and their title agents are struggling with title issues on real property held by same-sex married couples. While some of the requirements are the same as with a traditional married couple, there exist some additional hurdles that same-sex married couples have to jump.
In Florida, as in many other jurisdictions, tenancy by the entireties (“TBE”) is a form of ownership by a husband and wife (historically a heterosexual married couple) whereby each owns the entire property. Upon death, the property passes to the surviving spouse without need to go through probate. TBE also protects assets held by married couples against certain creditors. In order to qualify as TBE property under Florida law, the property must have certain characteristics including: (i) joint ownership and control, (ii) identical interest in the property, (iii) the interest must have originated in the same instrument, (iv) the interest must have commenced simultaneously, (v) the parties must have been married at the time the property was acquired, and (vi) the surviving spouse will own the property after either spouse dies. In Florida, unlike other states, TBE protection applies to all types of property, not just real property, and prevents creditors of one spouse from seizing, or taking action against, property held as TBE by both spouses.
While Florida now recognizes same-sex marriages, it is unclear whether Florida will recognize TBE for same-sex married couples. Title underwriters struggling with this issue have stated that until this issue is resolved, when title is vested in a same-sex married couple, judgments against one spouse must be treated as having attached to the property and will need to be cleared in order to issue a clean title policy (which is contrary to what is required for heterosexual married couples). In addition, probate will be required if one same-sex spouse dies and title to the real property was not taken as joint tenants with right of survivorship.
Also, when both spouses are taking title to the real property in Florida, their marital status should be reflected on the deed. With a same-sex couple you should inquire if they wish to take title as “a married couple”, “married to each other”, “husband and husband”, “wife and wife”, etc. In addition, attorneys should inquire whether the same-sex couple will be taking title to the property “as joint tenants with right of survivorship” or “as tenants in common”. As noted above, if no mention of survivorship rights is mentioned and one of the spouses dies, probate will likely be required.
As with heterosexual married couples, if the property owner states that he or she is married to a same-sex spouse, joinder of the spouse will be required for conveyance or mortgage of homestead property.