Same Sex Marriage & Title to Property

On January 6, 2015 same sex marriages became legal in the State of Florida.  The Florida Clerks of Court have begun issuing marriage licenses to same-sex couples and the option of becoming “tenants by the entireties,” instead of “joint tenants with the rights of survivorship,” is now available.

Holding title as tenants by the entireties has many benefits and is the easiest most automatic way for title to transfer upon the death of one spouse.  However, the change is new and it may be a little too early to tell how the law will shake out in this area.  Before making any changes to your property title consult an attorney as every case is different.

Until the legal issues are fully resolved, Title Insurance Underwriters have taken the following underwriting positions:

If a property owner states that he or she is married to a same-sex spouse, joinder of the spouse will be required for any conveyance or mortgage of homestead property.

  • When a same-sex married couple is acquiring title, the deed may reflect that the parties are married. (Example: John Smith and Fred Smith, a married couple) As in all cases, the parties, or their legal counsel, must make this decision and advise the title agent as to how they wish to take title.
  • When title is vested in a married same-sex couple, judgments against one spouse should be treated as having attached (instead of relying on a tenancy by the entirety).
  • When title is vested in a married same-sex couple with no mention of the right of survivorship and one spouse dies, probate should be required (instead of relying on a tenancy by the entirety).