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Holding property as husband and wife

January 18, 2019
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My husband Steve and I purchased a home in Cape Coral together, before we got married in November. We held the property as joint tenants with rights of survivorship. Do we need to do anything to officially hold the property as husband and wife?

- Julia M.

Dear Julia:

Congratulations on your recent nuptials! By taking the property as joint tenants with rights of survivorship, if one of you passed away, the other would own the property. This ownership should occur without the need for probate.

When property is held as husband and wife, they hold it in a special form of joint tenancy called "Tenants by the Entireties." This type of ownership provides significant benefit, including protection from creditors of one of the spouses. Also, one spouse would not be able to sell the property without the direct consent of the other. And, like with property held as joint tenants, a probate would not be needed if one of the parties died.

However, one of the requirements for this protection to be in place is that the marriage would need to be in effect when the title was acquired. Therefore, the conversion to entireties property is not automatic. You will need to sign a quitclaim deed from the two of you as joint tenants to the two of you as husband and hife. Oh, and keep in mind that, for Florida purposes, "Husband and Wife" has the exact same legal effect as "Tenants by the Entireties."

And there could be one other issue to be aware of. If you have a mortgage on the property, you will want to be very cautious. Flori-da law defines payment, or "Consideration" on the transfer of a deed, to include existing mortgages on the property. In your case, because there is an exception for transfers that occur within a year of marriage, there should be no documentary stamps tax payable on this consideration (which is 70 cents per hundred dollars in value). Anyone seeking to transfer property subject to a mortgage should consult with an attorney prior to signing and recording the deed.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 17 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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