LEGAL
First Comes House,
Then Comes Marriage
By Bridget M. Friedman, Esq.
2019 Real Estate Legal Summit Presenter
“Marriage and Divorce”
When it comes to planning
a wedding and getting
married, there are a million
details that go into
planning for the big day. However,
the planning does not stop aft er the
rehearsal dinner, ceremony, reception,
and aft er party. There is much
more to do, but it’s nothing nearly
as beautiful or exhilarating as a
choosing a dress, flowers, or venue.
In fact, this kind of planning rarely
gets attention since newlyweds are
amidst marital bliss and either are
unaware or remiss in post-nuptial
planning.
When it comes to purchasing
real estate, especially in situations
Newlyweds who purchased a home
together prior to the wedding have
some title clean-up to do
where unmarried couples buy a home while contemplating
an upcoming marriage, few know or think about how their real
estate is titled and what would happen in the event of the untimely
death of either owner.
As a review, there are two main tenancies by which a couple can
take title: tenants in common or joint tenants with rights of survivorship.
If a couple takes title as tenants in common, then each of
them owns a one-half undivided interest, which means that if one
of them dies, then his or her half passes according to his or her will
or the laws of intestacy in the case where one does not have a will.
By contrast, if a couple takes title as joint tenants with rights of survivorship,
then if one of them dies, the other takes title by operation
of law and probate is not needed and neither the will, nor laws of
intestacy, will control the disposition of the property at death.
Once the couple marries,
they now have a third
option of taking title which
did not exist before the marriage,
which is tenancy by
the entirety. Under a tenancy
by the entirety, the husband
and wife take title as one entity:
husband and wife. If one of them
passes, the other receives title to
the property by operation of law
and probate is not needed to vest
title in the surviving spouse.
However, tenancy by the
entirety is not created simply because
the couple marries. Rather,
the newly married couple must
execute a deed from themselves
back to themselves so that they
can create this tenancy. Although
it seems odd, the couple actually
deeds the property from themselves
back to themselves to create the
tenancy. The deed is witnessed and
notarized and sent to recording, just like other deeds.
The main reason to create a tenancy by the entirety is so that the
marital entity can enjoy creditor protections. Under a joint tenancy
or tenants in common, if there is a judgment lien against one of the
tenants, a creditor can foreclose the lien as to that tenant. However,
under a tenancy by the entirety, if one of the spouses has a judgment
lien against them, the creditor cannot foreclose the lien since
the marital entity owns the property and not either spouse individually.
If a tenancy in common or joint tenancy exists and the property
is homestead property of the tenants, then homestead Florida’s constitutional
homestead would protect them from creditors as well.
In summary, once the marital bliss wears off , newlyweds have
more planning to do, but this kind of planning is arguably less fun
than the journey that lead them to their nuptials.
> Bridget M. Friedman, Esq., Friedman Law P.A., will be presenting “Marriage
and Divorce” at the 2019 Real Estate Legal Summit on September 5 (visit
orlandorealtors.org to register). She can be reached at
bfriedman@ff -attorneys.com.
16 Orlando REALTOR® Summer 2019
/orlandorealtors.org
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