Tenancy By The Entirety Same Sex Marriage

[Buzzwood]

Jurisdiction

Florida

I live in Florida and am a Florida resident. I married my same sex partner in 2015 as soon as Florida made it available. I had been with this person 28 years up to that time. We have always titled our real estate as joints tenants with rights of survivorship. That way there would be no need for probate, unless something happened to us both. Now that we are married, my question is can we hold title as Tenancy by the Entirety? This is important because it offers additional estate planning features. We are thinking of purchasing a new place and would like to take advantage of this option. I have tried to research this topic on my own, but can find no up to date info. All I can find are articles from 2015-2016 that leave the question to be decided by each state. All the articles on Tenancy by the Entirety state that it is only available for "married couples", so under those terms my marriage should qualify. But, does it in Florida? I am hoping someone has the knowledge to answer this for me. Thanks in advance for any help.

 

[Zigner]

Search the web for Florida Tenancy by the Entirety. The first result explained it quite clearly. Seek the assistance of a local attorney to draw up the deed for you.

 

[Buzzwood]

Search the web for Florida Tenancy by the Entirety. The first result explained it quite clearly. Seek the assistance of a local attorney to draw up the deed for you.

Thank You for the quick reply, but I'm not sure you understood my question completely. I had already researched TBE for what it includes and protects for, I just wasn't sure it specifically includes same sex marriage. Right after same sex Marriage was approved, not all marriage benefits were automatic. The right to file federal joint tax returns came after special decisions were made, months later. Also Social Security Spousal benefits and Survivor benefits were decided on months later. Those are Federal Benefits so the decisions were made quickly. The last articles I could find that even mention same sex marriage TBE said the matter was up in the air and that each State would have to decide. Individual States sometimes don't decide so quickly. All other articles are generic as to details, so do I assume the decision has been made, and that the term "married couples" is all inclusive? I am hoping that is the case. Thanks again for your info.

 

[Tax Counsel]

All the articles on Tenancy by the Entirety state that it is only available for "married couples", so under those terms my marriage should qualify. But, does it in Florida? I am hoping someone has the knowledge to answer this for me. Thanks in advance for any help.

There is nothing in Florida law that I see that directly addresses the issue one way or the other. It is for that reason that Florida law firms caution that the issue is unclear. That said, given the U.S. Supreme Court's ruling that made same sex marriage legal in the first place I think the state would likely not succeed in attempting to treat same sex marriages differently than a heterosexual marriage.

 

[Buzzwood]

There is nothing in Florida law that I see that directly addresses the issue one way or the other. It is for that reason that Florida law firms caution that the issue is unclear. That said, given the U.S. Supreme Court's ruling that made same sex marriage legal in the first place I think the state would likely not succeed in attempting to treat same sex marriages differently than a heterosexual marriage.

Thanks for you reply. That's kind of what I was afraid of. It means there has been no decision one way or the other. It probably means that any title companies or lawyers in Florida would not issue such a TBE title. It means that a lawsuit would have to force the issue. I agree they probably would not succeed, but it would take some deep pockets to settle the issue. Thanks so much for your input. Maybe I can find out if any gay organizations are already on this, and what the status is.

 

[Zigner]

Thanks for you reply. That's kind of what I was afraid of. It means there has been no decision one way or the other. It probably means that any title companies or lawyers in Florida would not issue such a TBE title. It means that a lawsuit would have to force the issue. I agree they probably would not succeed, but it would take some deep pockets to settle the issue. Thanks so much for your input. Maybe I can find out if any gay organizations are already on this, and what the status is.

I believe that you took away the wrong thing from that. You are MARRIED, with all the benefits that entails.

 

[Buzzwood]

I believe that you took away the wrong thing from that. You are MARRIED, with all the benefits that entails.

I see what you mean. I hope that is how it works. I guess I will have to ask an estate planning attorney. I am in need of updated wills and have been putting it off. I'm sure they will know the score for sure. Thanks to you both for your replies.

 

[Zigner]

I see what you mean. I hope that is how it works. I guess I will have to ask an estate planning attorney. I am in need of updated wills and have been putting it off. I'm sure they will know the score for sure. Thanks to you both for your replies.

Seeking information from a local estate planning attorney is a wise path. It's quite possible that your question will be made moot by pursuing a different path for estate planning purposes. It may be that a trust is a better solution for you.

 

[Tax Counsel]

I believe that you took away the wrong thing from that. You are MARRIED, with all the benefits that entails.

You seem to be missing the issue. The problem is that while I agree that being married same sex couples should be able to hold property as tenants by the entirety (TBE) there is so far nothing in Florida law that explictly states this. As a result there is some risk that a Florida court or government agency would say that same sex couples cannot hold property as TBE, forcing the matter through appeals to resolve it. This is why Florida law firm web sites warn that the issue is not settled. As I indicated earlier, I think the ultimate result of such litigation would almost certainly be that Florida must allow all married couples to hold property TBE, until the matter is actually settled there is no way to be completely sure of that.

 

[flyingron]

TC is correct. It is untested at this point since the statute says "held by husband and wife" not "held by married couples." It will take a court case or a revisit from the legislature (or potentially both).

Of course, it won't be an issue if deeded that way until either someone tries to attach a judgment, or one of the couple passes.

 

[Zigner]

You seem to be missing the issue. The problem is that while I agree that being married same sex couples should be able to hold property as tenants by the entirety (TBE) there is so far nothing in Florida law that explictly states this. As a result there is some risk that a Florida court or government agency would say that same sex couples cannot hold property as TBE, forcing the matter through appeals to resolve it. This is why Florida law firm web sites warn that the issue is not settled. As I indicated earlier, I think the ultimate result of such litigation would almost certainly be that Florida must allow all married couples to hold property TBE, until the matter is actually settled there is no way to be completely sure of that.

Fair enough