Being married means building a life together. For most couples, that includes buying property together and living in it with the assumption that both spouses “own it” in the same way.
However, in Florida, that is not always how the law works. Real estate can be held in a variety of ways. In Florida, the three most common forms of co-ownership are: (1) tenancy in common, (2) joint tenancy with right of survivorship, and (3) tenancy by the entirety. These labels matter; they affect what happens if one owner dies, whether one owner can transfer his or her interest, whether a creditor can reach the property, and how the property may be treated in a Florida divorce.
Deeds Determine How Property Is Held in Florida
In Florida, the deed matters. The form of ownership is determined by the deed’s language. Florida does not presume survivorship. Rather, the right of survivorship in jointly held property does not apply unless the instrument creating the estate “expressly provide[s] for the right of survivorship.” Fla. Stat. § 689.15. In other words, where a deed does not clearly establish survivorship, the property will generally be treated as held as tenants in common.
This is why the language in the deed is so critical. In my experience, people often assume that if two names are on the title, both parties automatically inherit the property from each other. In Florida, that is not always the case. The legal effect depends on the form of title that was created.
Tenants in Common in Florida
In Florida, the default form of co-ownership is tenancy in common when survivorship is not expressly established. Fla. Stat. § 689.15. Each owner holds an undivided interest in the property, but there is no automatic right of survivorship. Tenants in common “hold by several and distinct title,” and each owner’s interest is freely alienable, devisable, and inheritable. In re Estate of Cleeves, 509 So. 2d 1256, 1258-1259 (Fla. 2d DCA 1987).
Put simply, that means when one tenant in common dies, that owner’s share does not automatically pass to the other co-owner. Instead, the deceased owner’s interest passes through his or her estate. In practice, this means the share may go under a will, trust, or Florida intestacy law, rather than to the surviving co-owner.
For example, John and Sally own a home as tenants in common. Then, John dies and leaves his interest to his children in his will. This means that Sally does not automatically receive John’s share. Instead, John’s children would inherit his interest and become co-owners with Sally.
The defining feature of a tenancy in common is “unity of possession,” which means that each owner has an equal right to possess and use the entire property, even though their ownership shares may differ. Andrews v. Andrews, 21 So. 2d 205, 206 (1945).
Another way that tenancy in common is different from survivorship ownership is that with a tenancy in common, each owner’s interest is separately transferable. A tenant in common can generally sell, transfer, or devise his or her share without giving the other owner the entire property by operation of law. See In re Estate of Cleeves, 509 So. 2d at 1259. This makes tenancy in common a much less unified form of ownership than tenancy by the entirety or joint tenancy with right of survivorship.
In Florida divorce law, tenancy in common becomes extremely important, as tenancy by the entirety transforms into tenancy in common upon dissolution of marriage unless the divorce judgment otherwise disposes of the property. Fla. Stat. § 689.15. What starts as a protected marital form of ownership can turn into an ordinary co-ownership between ex-spouses. In my practice, I see this happen a lot.
Joint Tenancy with Right of Survivorship in Florida
Unlike tenancy in common, joint tenancy with right of survivorship includes a right of survivorship. Therefore, when one owner dies, that owner’s interest automatically passes to the surviving owner or owners by operation of law, rather than through the deceased owner’s estate. Fla. Stat. § 689.15.
Florida does not presume survivorship, which means that the deed must clearly show an intent to create it. In fact, Florida courts follow the rule that a conveyance will “create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship.” Simon v. Koplin, 159 So. 3d 281, 282 (Fla. 2d DCA 2015).
As a result, the language of the deed is essential. In my experience, people mistakenly believe that placing two names on a title creates survivorship rights automatically. However, in Florida, that is not the case. Survivorship must be clearly stated.
In Florida, when one joint tenant dies, the surviving joint tenant will gain full ownership of the property automatically, even if the deceased owner’s will says otherwise. Indeed, absent severance, a joint tenant may “claim the interest of the original joint tenant, by reason of survivorship,” rather than that interest passing through the estate. Kozacik v. Kozacik, 26 So. 2d 659, 662 (1946).
Let’s go back to John and Sally. If John and Sally own a home as joint tenants with right of survivorship, and John dies, Sally then becomes the sole owner of the property. John’s interest does not pass through his will or estate, even if he attempted to leave it to someone other than Sally.
Thus, joint tenancy is a much more unified form of ownership than tenancy in common. However, unlike tenancy by the entirety, it does not carry the same protections or legal consequences that arise from the marital relationship.
Tenancy By the Entirety in Florida
Tenancy by the entirety is a special form of property ownership because it is only available to married couples. Although it is like joint tenancy with right of survivorship, it carries extra legal protections due to the marital relationship.
Under Florida law, a conveyance to spouses is presumed to create a tenancy by the entirety unless the deed clearly expresses a contrary intent. As explained in Ramos v. Estate of Ramos, “[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.” 329 So. 3d 172, 173 (Fla. 3d DCA 2021)
A simple way to think about this form of ownership is the idea that spouses are treated as a single legal unit, rather than as two separate owners. The Florida Supreme Court has laid out six unities to make ownership a tenancy by the entirety: “(1) unity of possession… (2) unity of interest… (3) unity of title… (4) unity of time… (5) survivorship; and (6) unity of marriage.” Beal Bank v. Almand & Assocs., 780 So. 2d 45, 52 (Fla. 2001).
Because of these unities, neither spouse owns a divisible share of the property. Instead, each spouse is considered to own the entire property.
Like joint tenancy, tenancy by the entirety includes a right of survivorship. Fla. Stat. § 689.15. Just as a reminder, that means when one spouse dies, the surviving spouse automatically becomes the sole owner of the property.
However, in Florida, tenancy by the entirety provides an extra, significant protection: creditors of only one spouse generally cannot reach the property. As the Florida Supreme Court recognized in Beal Bank, property held as tenants by the entirety is protected from the individual debts of one spouse because the obligation is not owed by the marital unit.
For example, if John and Sally are married and own a home as tenants by the entirety, and John incurs a personal debt, John’s individual creditor typically cannot place a lien on or force the sale of the home. So long as the debt is not jointly owed by both John and Sally, the property is protected.
Under Florida law, tenancy by the entirety is therefore the most unified type of property ownership. However, that unity exists only so long as the marriage exists. Divorce changes that relationship entirely.
How Title Affects a Florida Divorce
In a Florida divorce, the division of property is governed by the equitable distribution statute, Fla. Stat. § 61.075. Using this framework, a court does not merely divide property based on whose name appears on title. Rather, it will classify assets as either marital or nonmarital, then equitably distribute assets deemed marital.
The court in Distefano v. Distefano helpfully explains that marital assets generally include those “acquired . . . during the marriage, individually by either spouse or jointly by them,” while nonmarital assets include those acquired prior to the marriage or in exchange for such assets. 253 So. 3d 1178, 1180 (Fla. 2d DCA 2018).
At first glance, a person may think this framework suggests that title holds little significance. However, in my practice, how property is titled can have a substantial impact on whether an asset is ultimately treated as marital.
Presumption of a Gift During A Florida Marriage
One of the most critical ways title impacts property classifications is through the interspousal gift presumption. When one spouse takes nonmarital property and retitles it in both spouses’ names–particularly as tenants by the entirety–Florida law makes the presumption that a gift of one-half of that property was made to the other spouse.
As the court explained in Archer v. Archer, “a presumption of a gift is established when a tenancy by the entireties is created by a spouse with his or her separate real property.” 712 So. 2d 1198, 1199 (Fla. 5th DCA 1998).
Such a presumption is significant; it means that even if the property was originally nonmarital, placing it into joint title can convert it into a marital asset. Then, the burden shifts to the spouse claiming otherwise to prove, by clear and convincing evidence, that no gift was intended.
Title Is Not Absolute: Commingling and Transmutation In A Florida Divorce
It is true that title can create important presumptions, but I see many instances where it’s not dispositive. For instance, there are times when property that remains titled in one spouse’s name can become marital through commingling.
Florida courts have consistently held that nonmarital assets may lose their separate character when they are mixed with marital assets. As the court explained in Dravis v. Dravis, nonmarital assets “may lose their nonmarital character and become marital assets where . . . they have been commingled with marital assets.” 170 So. 3d 849, 852 (Fla. 2d DCA 2015).
In terms of money, this principle is particularly important. Money is fungible, so once nonmarital funds are commingled with marital funds, the two become indistinguishable and therefore marital.
As a result, title alone does not, in my experience, control an outcome. A spouse may hold sole title to an account or asset; however, if that asset is funded with commingled or marital resources, it may still be subject to equitable distribution.
The Practical Effect of How Title is Held On A Florida Divorce
All these principles demonstrate an important balance: in a Florida divorce, sometimes title matters, whereas other times, it does not. Title can (and often does) create powerful presumptions, but those presumptions can be overcome. Property can be reclassified based on how it is used during the marriage.
In reality, this means that not only the form of ownership but also the history of the asset must be considered when determining whether property is marital or nonmarital under Florida law.
What’s the Effect of Divorce on Joint Tenancy with Right of Survivorship?
Unlike tenancy by the entirety, joint tenancy with right of survivorship does not automatically convert into a tenancy in common. Under Florida law, “in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common,” yet no comparable rule applies to joint tenancy. Fla. Stat. § 689.15. Thus, divorce alone will not destroy a joint tenancy with right of survivorship.
Rather, joint tenancy with right of survivorship will continue unless it is severed. As explained in Kozacik, “any act of a joint tenant which destroys either of these unities operates as a severance of the joint tenancy and extinguishes the right of survivorship.” 26 So. 2d at 661.
Florida courts often apply this principle in practice. In Harelik v. Teshoney, one joint tenant conveyed her interest in the property to a third party while reserving a life estate. Such a unilateral act destroyed one of the required unities, meaning the joint tenancy was severed. 337 So. 2d 828, 829 (Fla. 1st DCA 1976). This act left the parties as tenants in common. Id.
In the context of a Florida divorce, a court often distributes or partitions jointly held property, and that action may likewise destroy the unities, which severs the joint tenancy. However, absent such action, the right of survivorship may remain in place even upon divorce.
What’s the Effect of a Florida Divorce on Tenancy by the Entirety?
Tenancy by the entirety dissolves as soon as a marriage does. Under Florida law, property held as tenants by the entirety automatically converts into a tenancy in common upon dissolution of marriage unless the parties agree otherwise. Fla. Stat. § 689.15. As the court in Levinas v. Levinas explained, “upon dissolution, property held as a tenancy by the entireties reverts to a tenancy in common, absent an agreement to the contrary.” 410 So. 3d 124, 127 (Fla. 3d DCA 2025).
No additional action is required to enact such a change. By operation of law, this transformation occurs now that the marriage is over.
This shift has critical consequences. Once the property transforms into a tenancy in common, each former spouse holds a separate, undivided interest in the property. In my practice, this often means that either party may seek partition, and each party may have ongoing obligations related to the property, such as carrying costs or maintenance.
Put simply, what was once a single, unified marital ownership turns into a shared ownership between two separate individuals. Consequently, the legal protections that existed during the marriage, particularly creditor protections, no longer apply in the same way.
Creditor and Fraudulent Transfer Considerations in a Florida Divorce
Tenancy by the entirety indeed provides significant protection from the creditors of one spouse; however, that protection is not absolute.
First, in cases where a debt is owed jointly by both spouses, then property held as tenants by the entirety is not protected. In other words, if both spouses are liable, the property may be subject to claims by creditors.
Second, a Florida court will not allow tenancy by the entirety to be used as a tool to shield assets from legitimate creditors through improper conduct. Where a transfer of property into tenancy by the entirety was made with the intent to hinder, delay, or defraud creditors, it may be challenged. In Florida, while tenancy by the entirety can be a powerful form of asset protection, it must be used legitimately.
Conclusion Regarding How Title Is Held In A Florida Divorce
The way property is titled in Florida carries real legal consequences. Whether property is held as tenants in common, joint tenants with right of survivorship, or tenants by the entirety impacts what happens during life, at death, and upon divorce.
Florida’s equitable distribution framework focuses on whether property is marital or nonmarital, yet title still matters. Title can create presumptions, shift burdens of proof, and ultimately shape how assets are divided.
However, title is only one part of the story. In Florida, a court will also look at how the property was acquired, used, and maintained during the marriage. In my practice, I see that it is both title and conduct that determine the result.
At the end of the day, how property is held is not merely technical–it is a decision that often defines ownership rights after the marriage ends.
To know more about how your property can and will be divided in a Florida divorce, contact my Naples, Florida family law office to speak with an experienced Florida divorce lawyer.
Cases and Statutes Referenced
Florida Statutes – Fla. Stat. § 61.075 (Equitable Distribution of Marital Assets and Liabilities)
Florida Statutes – Fla. Stat. § 689.15 (Estates by Survivorship)
Andrews v. Andrews, 155 Fla. 654, 21 So. 2d 205 (1945)
Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998)
Beal Bank v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001)
Distefano v. Distefano, 253 So. 3d 1178 (Fla. 2d DCA 2018)
Dravis v. Dravis, 170 So. 3d 849 (Fla. 2d DCA 2015)
Harelik v. Teshoney, 337 So. 2d 828 (Fla. 1st DCA 1976)
In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987)
Kozacik v. Kozacik, 157 Fla. 597, 26 So. 2d 659 (1946)
Levinas v. Levinas, 410 So. 3d 124 (Fla. 3d DCA 2025)
Ramos v. Estate of Ramos, 329 So. 3d 172 (Fla. 3d DCA 2021)
Simon v. Koplin, 159 So. 3d 281 (Fla. 2d DCA 2015)
Russell Knight is an attorney licensed in Florida since 2018 and licensed in Illinois since 2006. Russell represents clients throughout Southwest Florida. Russell Knight exclusively practices family law and has handled hundreds of divorce cases involving various property deeds.
