Florida law, for title research

Is Florida a community property state? No: what Florida law does instead, and what it means for a deed

Every rule below is quoted from the Florida Statutes or another official source, linked and checked on the date shown. General information, not legal advice.

What does Florida use instead of community property?

Equitable distribution. Section 61.075 of the Florida Statutes tells a divorce court to set apart each spouse's nonmarital assets and liabilities and then divide the marital ones, beginning with the premise that the distribution should be equal unless there is a justification for an unequal split based on all relevant factors.

The statute draws the line between the two kinds of property. Marital assets include assets acquired during the marriage, individually by either spouse or jointly by them. Nonmarital assets include what either spouse acquired before the marriage, and what a spouse acquired separately by a gift, bequest, devise or descent from someone other than the other spouse. One rule matters for land in particular: all real property the spouses hold as tenants by the entireties, whether acquired before or during the marriage, is presumed to be a marital asset, and a spouse who says otherwise carries the burden of proof.

The line has more detail than that. Marital assets also include enhancement in value of nonmarital assets from either spouse's efforts during the marriage or from marital funds, and principal paid from marital funds on a mortgage on nonmarital real property, with a formula for a portion of the passive appreciation. An interspousal gift of real property requires a writing that meets section 689.01, and joining in a deed with the sole purpose of conveying homestead to someone other than the spouses does not change the property, or its proceeds, to marital property. Nonmarital assets also include income from nonmarital assets, unless the parties treated, used or relied on it as a marital asset, and assets excluded by valid written agreement.

Timing matters too. Subsection (7) sets the cut-off for classification at the earliest of the date of a valid separation agreement, another date such an agreement expressly sets, or the filing of the dissolution petition. Subsection (4) says a judgment distributing assets has the effect of a duly executed and recorded instrument of conveyance once it, or a court-attested copy, is recorded in the county where the property is located.

On the word no: the IRS list sets the scope of a federal tax publication, which says it does not address community property elections under Alaska, Tennessee and South Dakota laws. Our answer rests on that list read together with the Florida statutes on this page, which use equitable distribution on divorce, allow community property by election through a trust, and have separate rules for community property from another state.

What is a Florida community property trust?

A way for a married couple to choose community property for specific assets. The Community Property Trust Act, Part XV of Chapter 736, lets settlor spouses classify any or all of their property as community property by transferring it to a community property trust that says so, whether both, one or neither of them is domiciled in Florida. Section 736.1502 limits the Act to trusts created, amended, restated or modified on or after July 1, 2021.

Section 736.1503 sets the requirements. The trust must expressly declare that it is a community property trust within the meaning of the Act, must have at least one qualified trustee, though both spouses or either spouse may also be a trustee, must be signed by both settlor spouses with the formalities required for a trust, and must open with a capitalized warning in substantially the statutory words. A qualified trustee is a natural person who is a resident of the state or a company authorized to act as a trustee in the state. Section 736.1511 adds that, for purposes of section 1014(b)(6) of the Internal Revenue Code, such a trust is considered a trust established under the community property laws of the state; what that means for a particular couple's taxes is a question for a tax adviser.

Other parts of the Act can matter to a buyer or an heir. Section 736.151 says property in the trust may continue to qualify or initially qualify as the spouses' homestead if it would qualify when titled in their names. Except as the homestead section of the constitution provides, Section 736.1506 lets one spouse's sole obligation be satisfied from that spouse's half share, unless the agreement allows more, and an obligation of both spouses during the marriage from the trust. Section 736.1512 makes a trust executed during marriage unenforceable if the spouse resisting it proves a listed ground, such as unconscionability when made, involuntary execution, or fraud, duress, coercion or overreaching.

What happens to a community property trust at death or divorce?

At death, Section 736.1507 splits the trust's value in two. One-half of the aggregate value of the trust property reflects the surviving spouse's share and cannot be disposed of by the deceased spouse's will or pass by succession. The other half reflects the deceased spouse's share and passes by will or under the laws of succession, and that share is not included in the elective estate.

On divorce, Section 736.1508 terminates the trust and directs the trustee to distribute one-half of the trust assets to each spouse, and it says section 61.075, the equitable distribution statute, does not apply to the assets held in the trust. Starting a dissolution action does not by itself end the trust unless agreed or ordered, but if the action stays pending for 180 days the trust terminates, unless a spouse timely objects, the court orders otherwise, the spouses agree in writing, or the agreement provides otherwise. Unless the agreement says otherwise, the trustee may make a non-pro rata distribution, but may not distribute real property in a way that leaves the spouses co-owners, unless they agree in a separate writing.

For a title search, the report reads what the record shows of real property moved into one of these trusts: any deed in, what appears of the trustee's authority and, after a death or divorce, any deed out.

How do married couples hold title in Florida?

Two sections shape the answer. Section 689.15 abolishes the right of survivorship between ordinary joint tenants: except for estates by the entirety, a conveyance to two or more people creates a tenancy in common unless the instrument expressly provides for survivorship. An estate by the entirety is the exception, and on dissolution of the marriage its tenants become tenants in common.

Section 689.11 lets one spouse deed real estate, including homestead, directly to the other, and lets the spouse holding title create an estate by the entirety by deeding to the other spouse with that purpose stated, or by deeding to both spouses. So a deed to a married couple, the wording of a survivorship clause, and a recorded judgment under section 61.075(4) can all change what the record says about who owns the property.

Can one spouse sell or mortgage a Florida homestead alone?

Generally no, if the property is homestead. Article X, Section 4(c) of the Florida Constitution says the owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift, and those words do not limit joinder to a spouse named on the deed. There are stated exceptions. The same subsection lets a married owner transfer title by deed to an estate by the entirety with the spouse, and section 689.11(1) says the grantee of a deed from one spouse to the other, including homestead, need not execute it. Section 4(c) also says that if the owner or spouse is incompetent, the method of alienation or encumbrance is as provided by law. Section 689.111(2) allows execution under a power of attorney, while keeping the requirement that the spouses join.

A title search tests this on a married Florida seller: a homestead deed or mortgage signed by the titled spouse alone, with none of those exceptions showing, is flagged for a Florida attorney.

Homestead has creditor rules as well. Within the acreage limits of Article X, Section 4(a), a natural person's homestead is exempt from forced sale and no judgment, decree or execution is a lien on it, except for taxes and assessments on it, obligations for its purchase, improvement or repair, or labor performed on it. Subsection (b) extends the exemptions to the surviving spouse or heirs. Whether a given property is homestead is a question for an attorney.

Who gets a Florida homestead when the owner dies?

The constitution limits the owner's will. Article X, Section 4(c) says the homestead is not subject to devise if the owner is survived by a spouse or minor child, except that it may be devised to the spouse if there is no minor child. For that limit, Section 732.4015(2) treats the grantor of a described trust as the owner and a disposition by trust as a devise. Section 732.7025 lets a spouse waive the devise restrictions with stated language in a deed, but says that is not a waiver of creditor protection or of the joinder rule. Where the homestead is not devised as the law and the constitution allow, Section 732.401 governs, but subsection (5) says that section does not apply to property the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.

If the owner leaves a spouse and one or more descendants, the spouse takes a life estate in the homestead with a vested remainder to the descendants, per stirpes. Instead of the life estate, the spouse may elect an undivided one-half interest as a tenant in common, with the other half vesting in the descendants, and the election must be made within 6 months after the death and during the spouse's lifetime. That time can extend only where an attorney in fact or guardian timely petitions for approval to make the election. The election is irrevocable and is made by filing a notice for recording in the official records of the county. A title search on an inherited Florida home therefore looks for the record of the death, how title was held, any notice of the spouse's election, and any court order on the homestead, because the answer can split title between a spouse and children.

The surviving spouse may have another right. Section 732.201 gives the surviving spouse of a person who dies domiciled in Florida a right to an elective share, Section 732.2065 sets it at 30 percent of the elective estate, and Section 732.2035 includes the decedent's interest in protected homestead in that estate. How those rules apply to one family is a question for a Florida attorney.

What about community property brought from another state?

Florida has statutes for it. Under Section 732.217, sections 732.216 through 732.228 govern the disposition at death of Florida real property acquired with, or traceable to, property that was community property under the laws of another jurisdiction, except real property held as tenants by the entirety and homestead property. For property those sections reach, Section 732.219(1) says that on a married person's death one-half is the property of the surviving spouse and is not subject to the decedent's will or to succession, and the other half is in the probate estate and outside the elective estate.

Three other rules limit how far that goes. Section 732.225 says reinvesting such property in Florida real property held by tenants by the entirety or as homestead creates a conclusive presumption that the spouses agreed to end its community property attribute. Section 732.222 says a purchaser for value or a lender taking a security interest takes free of the other side's rights where a surviving spouse, personal representative or beneficiary has apparent title, and need not inquire whether the vendor or borrower acted properly. Section 732.2211(1) sends a dispute over property held at the death to an action for declaratory relief, with a complaint due within 2 years after the death or forever barred.

What a title search checks on a married Florida owner

A title check before buying reads how each owner took title and what has changed since: whether a deed to spouses created an estate by the entirety or a tenancy in common, whether a spouse joined every homestead deed and mortgage, whether a dissolution turned an entireties estate into a tenancy in common or a recorded judgment distributed the property, whether the property was deeded into a community property trust, and, after a death, who holds the homestead under Article X and Section 732.401. Whether a spouse or child holds an interest is a legal conclusion for a Florida attorney; the report shows the record that question turns on.

The Florida marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Florida Statutes, section 61.075; Florida Statutes, section 736.1502; Florida Statutes, section 736.1503; Florida Statutes, section 736.1505; Florida Statutes, section 736.1507; Florida Statutes, section 736.1508; Florida Statutes, section 736.1511; Florida Statutes, section 689.15; Florida Statutes, section 689.11; Florida Constitution, Article X, Section 4; Florida Statutes, section 732.401; Florida Statutes, section 732.217; Florida Statutes, section 689.111; Florida Constitution, Article X; Florida Statutes, section 732.4015; Florida Statutes, section 732.7025; Florida Statutes, section 732.2065; Florida Statutes, section 732.219; Florida Statutes, section 732.222; Florida Statutes, section 732.2211; Florida Statutes, section 732.225; Florida Statutes, section 736.151; Florida Statutes, section 736.1506; Florida Statutes, section 736.1512. Each row links the section it summarizes.

Questions people ask

More on how Florida property law shapes a title search: title research in Florida.