Florida Probate, Trust & Guardianship Litigation

Real Estate Joint Tenancy Litigation

Two (or more) people can own real estate as joint tenants.  There are several types of joint tenancies recognized under Florida law – tenants in common, joint tenants with right of survivorship, and tenancy by the entireties.

In a tenancy in common situation, each tenant owns an undivided interest in the property.  Upon the death of a joint tenant, that tenant’s interest becomes an asset in the deceased owner’s estate.

In a joint tenancy with right of survivorship, upon the death of the first joint owner, the surviving owner becomes the sole owner of the property.  The property is not a probate asset of the dead owner’s interest, because it terminates at death.  The surviving owner becomes the sole remaining owner.  It is possible to have more than one owner in a joint tenancy with right of survivorship, commonly known as a “last man standing” deed.  Perhaps it should be renamed as a “last person standing” deed, but such deeds operate such that as each co-owner dies, the remaining owners become the owners of the deceased person’s interest, until there is only one surviving owner left.  The last surviving owner then becomes the sole owner of the property.

A tenancy by the entireties is joint ownership between spouses.  It operates similarly to a joint tenancy with right of survivorship, except that the joint tenancy can only be severed by a deed from both spouses.

Under Florida law, how is a joint tenancy with rights of survivorship terminated?

It is well established that a joint tenancy with right of survivorship is terminated be either co-tenant deeding his or her interest.  In the case of Weisblat v. Feldman, 4D22-525 (4th DCA  2023), a co-owner of a joint tenancy with right of survivorship deed his interest in the property to himself.  After the death of that co-tenant, the remaining co-tenant claimed that the joint tenancy with right of survivorship was not terminated by the deed to himself. Instead, it was argued that only a deed to a third party could have terminated the survivorship status.

Some Florida cases have described the use of a straw man, conveying the property from the joint tenant to a third person, and back to the original tenant.  Such an arrangement would without question terminate the survivorship part of the deed.  The Court, however, held that such straw man arrangements are not required, and that a deed from a joint tenant to himself is sufficient to terminate the survivorship aspects of the deed.

[T]he creation of a joint tenancy with a right of survivorship can be terminated by the conveyance of an interest of any joint tenant to a stranger.

[A]lthough, in the creation by a person of a joint tenancy with right of survivorship in that person and another, the use of a strawman to whom to first convey that person’s interest before the time of the conveyance creating the joint tenancy is “an acceptable method of obtaining the desired result,” that “does not make it the only available or even the most desirable method.

The joint tenancy with right of survivorship could be, and was, terminated and a tenancy in common created by a conveyance by one joint tenant-the decedent-of his interest to himself.

Learn more about Florida inheritance litigation.

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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