The main ways to hold title to real estate in Florida are (1) Tenants in Common (2) Tenants by the Entireties and Joint Tenants with the Right of Survivorship. Joint Tenants with the Right of Survivorship is a manner of holding real estate where if one joint owners passes away the other acquires their interest in the subject Property. Fla. Stat. 689.15 provides that survivorship is not presumed and thus to hold title in this manner requires specific language on the deed. For a joint tenancy to be operative the acquiring parties must share four “unities” which are, possession, title, time and interest. This means the parties must have acquired the interest simultaneously and their ownership in the Property must be identical. Unlike other forms of Property ownership the Joint Tenancy can be encumbered by creditors and is subject to individual judgment liens.
Joint Tenancy may be severed by an act of one Joint Tenant if the joint tenant conveys their interest in the real property to themselves or a third party or by mutual agreement.
The advantage of holding title as a Joint Tenant with the right of survivorship is that the Property interests are conveyed completely to the surviving joint holder of the property upon the death of a joint tenant. So a major advantage of holding title in this manner is avoiding probate. Other mechanisms exist to provide an automatic transfer of real estate including Trusts, Life Estate Deeds and for married couples a Tenancy by the Entireties. For non-married couples a Joint Tenancy is a method to automatically transfer property interests and avoid probate. Another key characteristic with Joint Tenancy with the Right of Survivorship in Florida is shared responsibility for the upkeep and obligations of the Property. Each owner is responsible for the asset and liabilities can attach.
If you hold title and are considering adding a loved one to the Property as a Joint Tenant with a Right of Survivorship understand that once they are added to the title they now have a vested interest in the Property. So if the relationship sours or for example the Joint Tenant goes through a divorce or incurs a debt it can attach to your Property. Because of these reasons if the goal is to transfer title to the Property upon death then an Enhanced Life Estate Deed or a revocable living is superior because the grantor will retain full control during lifetime. If instead two people wish to have the responsibility of co-ownership during lifetime to hold/own or manage a property then in some circumstances a Joint Tenancy with the Right of Survivorship makes sense.
Pros- Avoids Probate
- Joint responsibility
- Allows non-married co-owners to pass ownership without a Last Will and Testament
- Debtors of co-owner can attach to property
- Severable by either joint owner
- Loss of control of Property
How Florida’s Default Rule Works (Fla. Stat. § 689.15)
Florida law does not presume survivorship. Under Fla. Stat. § 689.15, a deed to two or more people creates a tenancy in common — with no automatic transfer at death — unless the instrument expressly provides for the right of survivorship. The one exception is a conveyance to a married couple, which creates a tenancy by the entireties. In practice, that means the words on the deed control: “as joint tenants with right of survivorship” (or substantially similar language) must appear, or the deceased owner’s share passes through probate to their estate rather than to the co-owner.
JTWROS vs. Tenancy by the Entireties vs. Tenancy in Common
- Tenancy in common — the default. Each owner holds a divisible share; at death that share goes through probate under the owner’s will or Florida’s intestacy rules. Shares may be unequal.
- Joint tenancy with right of survivorship — must be expressly stated. The survivor takes the whole automatically, outside probate. Each owner’s interest remains exposed to that owner’s individual creditors, and either owner can sever unilaterally.
- Tenancy by the entireties — available only to married couples. Survivorship is built in, and property held this way is generally protected from the separate creditors of one spouse — a significant advantage JTWROS does not offer.
Bank Accounts Follow the Opposite Rule
Real estate and bank accounts run on opposite defaults. While a deed must expressly state survivorship, Fla. Stat. § 655.79 presumes that a deposit account titled in two or more names — including certificates of deposit — was intended to vest in the survivor at death, unless the signature card or account agreement expressly provides otherwise. Families are often surprised in probate when the house passes one way and the accounts another. If your estate plan depends on who receives what, both the deeds and the account titling need to be checked.
Tax, Medicaid, and Homestead Considerations Before Adding a Co-Owner
Adding an adult child or other loved one to your deed as a joint tenant is a present, completed transfer of a property interest — not a will substitute you can quietly undo. Before signing, consider:
- Medicaid look-back. Adding a non-spouse co-owner for less than fair value is a transfer that can trigger a penalty period if you apply for long-term-care Medicaid within five years. See our guide to the Florida Medicaid five-year look-back.
- Capital gains basis. A surviving joint tenant generally receives a stepped-up basis only on the portion of the property included in the deceased owner’s estate — often less favorable than inheriting the entire property. Coordinate with a tax professional before re-titling appreciated real estate.
- Homestead. Florida’s constitutional restrictions on the devise of homestead, and its homestead creditor exemption, interact with co-ownership in ways that can defeat the plan. A deed that works for a rental property can be a mistake for your residence.
For most clients whose only goal is “the property goes to my kids without probate, but I keep control,” an enhanced life estate (lady bird) deed or a revocable living trust accomplishes that without handing over a present ownership interest.
Severing a Joint Tenancy
Any joint tenant can destroy the survivorship feature unilaterally by conveying their interest — even to themselves — which converts the ownership to a tenancy in common. Co-owners who cannot agree on the use or sale of the property may also file a partition action. If you are in a co-ownership dispute, see our guide to co-owner obligations under Florida law.
Talk to Zoecklein Law, P.A. — Statewide Florida Real Property and Estate Counsel
How you hold title determines whether your property passes automatically, through probate, or into a dispute. Zoecklein Law, P.A. advises clients statewide on deeds, survivorship planning, probate, and co-ownership litigation. Call (877) 206-0022 for a free consultation.