Taking Title as Husband and Wife in Florida: Tenancy and Homestead

Married couples taking title as husband and wife in Florida have three options: tenancy by the entirety, joint tenancy with right of survivorship, and tenancy in common. The law presumes the first when a deed conveys property to a married couple, and for most couples buying a primary home together, that presumption produces the right result. The other two exist for specific situations, mostly second marriages, blended families, or couples where one spouse is not a U.S. citizen. The choice is made at the deed, it affects what happens if you divorce, die, get sued, or file bankruptcy, and undoing the wrong choice later is expensive.

Tenancy by the Entirety

Tenancy by the entirety is the default. Florida courts treat real property acquired in both spouses’ names as held in the entirety unless the deed says otherwise, and anyone challenging that presumption carries the burden of proving it was not intended.¹ The law treats husband and wife as a single owner rather than two people each holding a share.

Two features make this form worth defaulting to. The first is survivorship. When one spouse dies, the other becomes sole owner immediately, with no probate. The deceased spouse’s interest simply ends, and the survivor keeps the whole property.¹

The second is creditor protection, and it is the real reason this form matters in Florida. Because the couple is treated as one indivisible owner, a creditor holding a judgment against only one spouse cannot force a sale or place a lien on the property. If one spouse runs up credit card debt, loses a lawsuit, or defaults on a business loan the other spouse never signed, the home stays out of reach. Only a creditor holding a joint judgment against both spouses can reach it.¹ The same presumption applies to jointly held bank accounts, brokerage accounts, and other personal property owned by a married couple.

Joint Tenancy With Right of Survivorship

Joint tenancy with right of survivorship also gives the surviving owner the whole property outside of probate, but Florida does not create it automatically. The deed has to say expressly that the owners hold as joint tenants with a right of survivorship. Without that language, the default is tenancy in common.²

Joint tenancy works for any two or more people, not just married couples. Unmarried partners, siblings, or business associates can all use it. What it gives up is the creditor shield tenancy by the entirety provides: a creditor with a judgment against one joint tenant can pursue that person’s interest and potentially force a sale. For a married couple who qualifies for tenancy by the entirety, there is rarely a good reason to pick joint tenancy instead.

Tenancy in Common

Tenancy in common is the fallback. Any deed conveying property to two or more people that neither includes survivorship language nor identifies the owners as a married couple produces a tenancy in common.² There is no survivorship. When one owner dies, that person’s share passes through their will, or through Florida’s intestacy rules and probate if there is none.

Tenants in common can hold unequal shares, and that is the main reason a married couple would ever choose this form deliberately. In a second marriage where each spouse wants their portion of the home to go to children from an earlier relationship, tenancy in common makes that possible. A 60/40 or 70/30 split written into the deed controls how the property is divided, and each owner can leave their share to whomever they choose.

The risk is partition. Any co-owner can file an action asking a judge to divide the property or order it sold. If the property cannot be split physically, the court can order a sale and distribute the proceeds according to each owner’s share. That mechanism is what makes tenancy in common disputes expensive and unpredictable, especially after a divorce converts former entirety property into tenancy in common between two ex-spouses who no longer agree on anything.

What Happens to Title After Divorce

The moment a Florida court finalizes a divorce, tenancy by the entirety ends. The statute is direct: the former spouses become tenants in common by operation of law.² No new deed is required for the conversion to take effect, though recording an updated deed avoids confusion in later title searches.

Both protections disappear on the same day. If one ex-spouse dies, the other no longer inherits automatically. A judgment creditor of either ex-spouse can pursue that person’s share. And either owner can file a partition action to force a sale.

How Florida’s Homestead Rules Interact With Title

Florida’s homestead protections are among the strongest in the country, and they sit on top of whatever title form you choose. Under the Florida Constitution, homestead property is exempt from forced sale by most creditors, with limited exceptions for mortgages, property taxes, and certain contractor liens.³ A home held in the entirety essentially carries two layers of insulation from individual creditors.

Homestead status also restricts what either spouse can do with the property. A married homeowner cannot sell, mortgage, or give away homestead property without the other spouse joining in the transaction, regardless of whose name is on the deed.³ Even if only one spouse holds title, the other must sign the deed or mortgage for it to be valid. This is a constitutional requirement, and failing to get spousal consent can void the entire transaction.

The restriction that undoes the most estate plans is the limit on inheritance. If you are survived by a spouse or minor child, you generally cannot leave your homestead to anyone else. Attempting to devise the home to an adult child from a prior marriage while your current spouse is alive results in a void devise.³ When that happens, the surviving spouse receives either a life estate in the home, with the remainder going to the deceased spouse’s descendants, or may elect to take an undivided one-half interest as a tenant in common.⁴ Neither outcome may be what the deceased spouse wanted, which is why homestead and title choices have to be planned together.

When One Spouse Is Not a U.S. Citizen

Couples where one spouse is not a U.S. citizen face tax complications that affect how they should hold title. The unlimited marital deduction, which normally lets spouses transfer unlimited assets to each other tax-free, does not apply when the receiving spouse is a non-citizen. Tax-free gifts to a non-citizen spouse are capped at $194,000 per year in 2026.⁵ Putting a non-citizen spouse on the deed to a home worth $800,000 as a half-owner would blow past that threshold and trigger gift tax.

At death, the problem grows larger. For a non-citizen surviving spouse to defer estate tax on inherited property, the assets generally must pass through a qualified domestic trust. That trust needs at least one U.S. citizen or domestic corporation as trustee, and the trustee must have the right to withhold estate tax from any distribution of principal.⁶ If the non-citizen spouse later becomes a citizen and was a U.S. resident the entire time, these restrictions can be lifted. Until then, simply putting a home in tenancy by the entirety and assuming the survivor inherits tax-free is a mistake that can produce a six-figure tax bill.

Tenancy by the Entirety in Bankruptcy

When one spouse files for bankruptcy in Florida, entirety property enters the bankruptcy estate but may be exempt to the extent it would be protected under Florida law outside of bankruptcy. The federal Bankruptcy Code specifically allows debtors to exempt entirety property from the estate to the extent that state law shields it from creditors.⁷ Since Florida shields entirety property from any creditor without a joint judgment against both spouses, a home owned this way is often fully exempt when only one spouse files.

The protection weakens when joint debts exist. If both spouses owe the same creditor, federal courts have held that the entirety property is no longer exempt to at least the extent of that joint claim. Courts disagree on what happens next. Some limit the sale proceeds available to creditors to the amount of the joint debt; others treat the debtor’s entire interest as non-exempt once any joint creditor exists. The outcome depends on which federal circuit and bankruptcy court handles the case, which makes pre-filing legal advice essential for any couple relying on entirety protection.

Getting the Deed Right

None of these protections matter if the deed is drafted incorrectly. To create tenancy by the entirety, the deed has to identify the buyers as a married couple. The standard phrasing is something like “John Doe and Jane Doe, husband and wife” or “John Doe and Jane Doe, a married couple.” Leaving out the marital language can cause the ownership to default to tenancy in common, stripping away both survivorship and creditor protection.¹

For joint tenancy with right of survivorship, the deed must expressly include survivorship language. Florida does not imply it; a deed that just says “John Doe and Jane Doe” without more is treated as tenancy in common.² The cost of a real estate attorney’s review is trivial compared to the cost of fixing the wrong ownership form after a death, a lawsuit, or a divorce.

Expect to pay Florida’s documentary stamp tax on any conveyance. The rate is 70 cents per $100 of consideration or fraction thereof, so a $400,000 purchase carries $2,800 in documentary stamps.⁸ Recording fees for the deed itself are modest, typically $10 for the first page plus $8.50 for each additional page. These costs apply regardless of which title form you choose; the decision itself carries no extra fee.

1
The Florida Bar. Turning Straw Into Gold: A Comprehensive Guide to Tenants by the Entirety in Florida
2
Florida Senate. Florida Code 689.15 – Estates by Survivorship
3
FindLaw. Florida Constitution Art X 4 – Homestead Exemptions
4
Justia Law. Florida Code 732.401 – Descent of Homestead
5
Internal Revenue Service. Frequently Asked Questions on Gift Taxes for Nonresidents Not Citizens of the United States
6
Office of the Law Revision Counsel. 26 USC 2056A – Qualified Domestic Trust
7
Office of the Law Revision Counsel. 11 U.S. Code 522 – Exemptions
8
Florida Department of Revenue. Documentary Stamp Tax