Concurrent Estates and Dissolution of Marriages
by St. Petersburg/Florida Family Law Attorney on 03/25/16
A concurrent estate is a term used frequently in property law. It describes the various ways in which property is owned by more than one person at a time. The different types of concurrent estates are the following: Tenancy by the Entirety, Joint Tenancy with Right of Survivor-ship and Tenancy in Common. For the purposes of this post, we will talk about the different aspects of Tenancy by Entirety.
As a Family Law/Divorce attorney in St. Petersburg, Florida, when rendering advice about how to prepare for a divorce, it is imperative that as a client you are well informed about this legal theory. Essentially, the term Tenancy by Entirety ("TBE"), is reserved for situations where personal/real property are owned as husband and wife. The four unities necessary to create a joint tenancy must exist, in addition to being married. With this concept, essentially, both parties own the property as a whole, not 50/50. This rule usually applies in instances such as home ownership, cars, bank accounts, etc.
A TBE can only be broken in one of four ways: Death of one spouse, Divorce, Joint Creditor, or Mutual agreement. If any of these four occur, your TBE is transformed/converted into a Tenancy in Common. An individual who owns property as "TBE" cannot convey their interest via will, due to the fact that the other spouse owns the property as a "whole." Now, let's say that one spouse decides to add their 24 year old daughter to the deed (that has both the husband and wife's name on it as they acquired it as Husband and Wife). That one spouse would need the other spouse's consent to put their 24 year old daughter on the deed. If this occurs, then breaking the "TBE" usually results in all parties owning a 1/3 as tenancy in common (this theory will be discussed in a future post). Furthermore, both husband and wife, along with their child have the option to own the property as "Joint Tenants w/ Right of Survivor-ship." Please note though, that this must be explicitly stated in the deed, or whatever documents it must be listed on. Why is this so important? Well, if we're dealing with a Joint Tenancy with a Right of Survivorship, then none of the three parties can will their part of the property. They all own 100%, and as a result, the surviving owner will receive 100% interest. However, if the parties own the property as Tenancy in Common, they are free to pass on their 1/3 of the property any way they would like and the law of intestate succession would apply if no will was found.
We welcome you to contact us for a free over the phone consultation, or a low-cost in office consultation in our St. Petersburg office. As a Family Law/Divorce attorney, I will apprise you of your legal rights and fight for you until the very end.