Married couples and home ownership in Florida

What replaces community property in Florida?

Three sets of rules apply instead: how you hold title (usually tenancy by the entirety), equitable distribution at divorce (§ 61.075), and the homestead limits on selling or leaving the home by will (Constitution, Art. X, § 4). Couples who want community property treatment can opt in through a community property trust, available since 2021 (§ 736.1501 and following).

How do spouses hold title to a Florida home?

Tenancy by the entirety is a form of ownership open only to spouses. Section 689.11 says one spouse can create it by deeding the home to the other spouse with that purpose stated, or by deeding it to both spouses. Section 689.115 adds that a mortgage made or assigned to a married couple creates an estate by the entirety in that mortgage unless the document says otherwise.

Section 689.15 sets the default for everyone else. A deed to two or more people creates a tenancy in common, with no right of survivorship, unless the deed expressly provides for survivorship. The exception is an estate by the entirety. If the spouses divorce, they become tenants in common (§ 689.15).

The title company that prepares your deed can tell you how the vesting will read; see title insurance in Florida.

How is the home divided at divorce?

Section 61.075(1) tells the court to set apart each spouse’s nonmarital assets. For the marital assets, the court “must begin with the premise that the distribution should be equal,” unless factors justify an unequal split. One listed factor is the desirability of keeping the marital home as a residence for a dependent child when that is equitable and financially feasible (§ 61.075(1)(h)).

Two details matter for homes. Joining in a deed only to sell the homestead to a third party does not turn the property or the sale proceeds into marital property (§ 61.075(6)(a)1.d). And an interspousal gift of real property requires a writing that meets § 689.01.

Example: a home owned before the marriage

Section 61.075(6)(a)1.c gives a formula for a nonmarital home whose mortgage is paid down with marital funds. Suppose a house is worth $300,000 on the wedding day and $450,000 at the divorce valuation date, with no improvements and no new loans. The couple paid $60,000 of principal from their wages.

• Passive appreciation: $450,000 − $300,000 = $150,000
• Coverture fraction: $60,000 ÷ $300,000 = 0.20
• Marital share of the appreciation: $150,000 × 0.20 = $30,000
• Total marital portion: $30,000 + $60,000 principal = $90,000, capped at the net equity

The rest stays the owner’s nonmarital property, unless a party shows the formula would be inequitable (§ 61.075(6)(a)1.c(V)). A later sale raises tax questions; see our guide to capital gains on a home sale.

What does the homestead rule change?

Article X, § 4(c) of the Florida Constitution says the owner of homestead real estate, joined by the spouse if married, may sell, mortgage or give it away. In practice the spouse signs even when only one name is on the deed.

The same section says the homestead cannot be left by will if the owner is survived by a spouse or a minor child. It can be left to the spouse if there is no minor child (§ 732.4015 repeats the rule). When the homestead is not validly devised and the owner leaves a spouse and descendants, § 732.401 gives the spouse a life estate, with the remainder to the descendants. Within 6 months of the death, the spouse can instead elect an undivided one-half interest as a tenant in common.

Spouses can waive homestead, elective share and intestate rights by a written agreement signed before two witnesses, before or after the marriage (§ 732.702). Without a waiver, a surviving spouse can claim an elective share of 30% of the elective estate (§ 732.2065).

What is a Florida community property trust?

Since July 1, 2021, married couples, whether or not they live in Florida, may classify property as community property by transferring it to a trust that meets § 736.1503:

• it expressly declares itself a community property trust under Part XV;
• it has at least one qualified trustee, a Florida resident or a company authorized to act as trustee in Florida (§ 736.1502);
• both spouses sign it with trust formalities;
• it opens with a capitalized warning paragraph set by the statute.

At death, half the trust’s value is the survivor’s share (§ 736.1507). At divorce, the trust ends and the trustee gives one-half to each spouse; § 61.075 does not apply to those assets (§ 736.1508). Section 736.1511 treats the trust as established under community property law for 26 U.S.C. § 1014(b)(6), the federal rule that can step up the basis of both halves at the first death. A trust can be unenforceable if, for example, it was unconscionable or signed without fair disclosure (§ 736.1512).

Couples who move from a community property state keep some protection: §§ 732.216 to 732.228 give the survivor half of qualifying property at death. That law excludes property held as tenants by the entirety and homestead property (§ 732.217). For your own situation, a Florida attorney can advise; see real estate attorneys in Florida.