Married couples take title to their homes in joint deeds all the time. The vast majority of these deeds are simple form documents that don’t go beyond the bare minimum needed to convey title. For example, the deed doesn’t have to say if the grantor intended to convey the home to them as “tenants in common” or as a “tenancy by the entireties” (TBE). And for most couples it doesn’t matter.
But when it does matter, this esoteric sounding property-law distinction can have profound implications. How the property’s owned can be the difference between whether you lose it to creditors in bankruptcy (or not), or whether it gets divvied up in a probate proceeding when the first spouse dies (or not). (A key characteristic of TBE property is that it automatically passes 100% to the surviving spouse without going through probate; tenants in common property doesn’t.)
Fortunately, we don’t have to litigate these property-law questions on a case-by-case basis. Unless a married couple’s deed includes a statement expressly showing a contrary intent, it’s presumed as a matter of law to be TBE. This presumption’s at the core of a lot of what we do as practitioners. Which brings us to the recent Ramos opinion.
Case study: In re: Estate of Ramos, — So.3d —-, 2021 WL 4561365 (Fla. 3d DCA October 06, 2021):
This case involved a couple who married in 1975. In 2013 they took title to their home in a deed that identified them as “Pedro Pablo Ramos and Eleida Farro Ramos; whose post office address is 14545 SW 293rd Street, Homestead, Florida, 33032; hereafter called the grantee.” Nothing more (which is the norm).
Wife died three years later in 2016. Husband died in 2020. If the house was owned as tenants in common, then wife could sign a will giving her 50% share of the house to her daughter from a prior marriage. If the house was owned as TBE, then wife’s will doesn’t matter, as soon as wife died the house transferred 100% to her surviving spouse without going through probate.
And that’s exactly the dispute the court in this case was confronted with. When husband died, wife’s daughter from prior marriage opened a probate proceeding for mom’s estate, claiming a 50% share of the house. Husband’s PR objected, claiming the property was TBE, which means it skipped wife’s estate, going instead 100% to husband.
Turning the TBE presumption on its head, daughter from prior marriage argued
… that because the deed contained no language indicating an estate by the entireties, it must be assumed to be a tenancy in common, thus [wife’s] one-half interest in the estate passed to her estate upon her death.
Nonsense, right? Yup. So what happened? Surprise! Trial judge ruled for daughter from prior marriage twice — once when the issue was first heard and again on a motion for rehearing. Wrong answer said 3d DCA.
Back to basics:
If a deed conveys title to two people who are married to each other it doesn’t have to say anything else to trigger the TBE presumption (not even that they’re married). So saith the 3d DCA:
American Central Insurance Company v. Whitlock, 122 Fla. 363, 165 So. 380 (1936), and its progeny, control this case. In the case of real property, the owners do not need to be described as husband and wife in the deed and their marital relationship does not need to be referred to in order to establish a tenancy by the entireties. Id. at 381. This principle was affirmed by the Florida Supreme Court in Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001), holding that where real property is acquired specifically in the name of a husband and wife, it is considered to be a “rule of construction that a tenancy by the entireties is created.” Thus, “[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.” In re Estate of Suggs, 405 So. 2d 1360, 1361 (Fla. 5th DCA 1981) (citing Losey v. Losey, 221 So. 2d 417 (Fla. 1969)).
And because the deed in this case didn’t say “we don’t want TBE,” it’s TBE. So saith the 3d DCA.
There is nothing in the 2013 special warranty deed to indicate that Eleida and Pedro Ramos did not intend to take title to the Homestead property as tenants by the entireties. Thus, when Eleida died, her one-half interest passed to Pedro. See Beal Bank, 780 So. 2d at 63, n.9 (citing Amer. Cent. Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380, 381 (1936)). “The rule is rooted in the historical notion that a husband and wife are ‘but one person in law.’” Mitchell v. Mitchell, 344 B.R. 171, 174 (Bkrtcy. M.D. Fla. 2006) (quoting Winchester v. Wells, 265 F.2d 405, 407 (5th Cir.1959)).
We find the appellee’s arguments to be without merit and conclude on de novo review that the Homestead property belongs in Pedro’s estate by operation of the principle of tenancy by the entireties. We reverse the summary administration order, and remand with instructions that Maritza Ramos’s objection to summary administration be sustained and the summary administration order be dismissed.