Disclaimer: this article is a starting point, not legal advice. It's written by a real estate broker, not an attorney. Understanding your options before you consult an attorney is valuable, but a real estate attorney should review your specific situation before you make a final decision on how to hold title.
When you buy property with someone else, you have to select a form of ownership to be stated on the deed. One of the biggest decisions a property owner makes is how the property is disposed of at death, and how exposed it is to creditors along the way.
The right of survivorship is a powerful legal privilege: if you intend for property to automatically transfer to your co-owner(s) on death, the deed needs a Right of Survivorship clause. Without it, real estate can end up in probate regardless of what a will says. Two common ownership types carry the right of survivorship: Tenancy by the Entirety (married couples only) and Joint Tenants with the Right of Survivorship.
What is probate?
Probate is a court process for distributing a deceased person's assets after paying off creditors and other expenses. It can take a few months or a few years. Right of Survivorship typically avoids probate by transferring title automatically to the surviving owner — for unmarried co-owners, that's the main benefit; for married couples, it's an added layer on top of other protections described below.
Probate can create real problems for survivors. If a surviving owner can't afford the mortgage, taxes, or other expenses and no will exists (or the will doesn't give the executor power to sell), the property generally can't be sold while in probate without a court order — adding cost, delay, and possible court-imposed conditions, while mortgage and tax payments still come due. Unpaid, a lender can foreclose and a taxing authority can force a sale.
Tenancy by the Entirety (married couples only)
Offers asset protection from creditors plus the right of survivorship. On the death of one spouse, the property automatically transfers to the survivor with no probate. Before death, it's an equal 50/50 ownership regardless of who contributed the funds — neither spouse can sell, rent, encumber, or disinherit the other's share without both signing off.
If you bought the property before marriage and want this benefit, you'll need to deed the property to yourself and your spouse after the marriage — the marriage has to come before the purchase for the original title to qualify, so a re-deed creates the new Tenancy by the Entirety record (this can get complicated with an existing mortgage; talk to your lender).
If one spouse racks up debt, judgment creditors generally can't reach the property unless the judgment is against both spouses. In Florida, this protection extends to non-resident owners as well — a non-resident can hold Florida real estate as Tenants by the Entirety or Joint Tenants with the Right of Survivorship and still get the creditor protection.
Divorce immediately converts Tenancy by the Entirety into Tenants in Common, exposing the property to the debt-holding spouse's creditors. And when either spouse dies, the Tenancy by the Entirety terminates since the survivor now owns the property solely — if the survivor is the spouse with debt, creditors can and often will pursue it (Homestead exemption, covered below, may offer separate protection).
Joint Tenants with Right of Survivorship
For two or more unmarried people who buy together, at the same time, with equal ownership percentages, intending that a deceased owner's share automatically passes to the survivor(s) — even if that owner's will says otherwise. The deed must specifically state "Joint Tenants with the Right of Survivorship." On death, the survivor files an affidavit and death certificate to complete the transfer.
Unlike Tenancy by the Entirety, any Joint Tenant can sell their interest at any time without the other owners' approval (a Right of First Refusal clause, covered below, can address this). Debt is a real risk here: a creditor can file a lien, effectively becoming a Tenant in Common, and can pursue a Partition lawsuit to force a sale or sell their interest to a third party. Florida Homestead protection, if the property qualifies, can shield against this.
Tenants in Common
Allows unequal, separate ownership shares. Each owner can do what they want with their share, but you should specify ownership percentages in the deed — if you don't, the law treats it as equal ownership regardless of what each person actually put in. Example: if you contribute $300,000 and a co-owner contributes $100,000 with no percentages specified in the deed, a later $400,000 sale would split $200,000/$200,000, not proportional to what each person paid in. Each owner has an undivided interest, meaning a 75% owner and a 1% owner have equal rights to use the property. Any Tenant in Common can sell their interest at any price without the others' permission. When two or more people inherit property together, they typically receive it as Tenants in Common. A written co-ownership agreement, drafted with an attorney, can help avoid future conflict.
Severalty (sole ownership)
One person — or one entity, such as a corporation or LLC — owns the property outright and can use it as they wish within local law. If you're married and want sole ownership, your spouse generally needs to sign away any future claim to the property; alternatively, some buyers form an LLC to hold the property, though a mortgaged property held by an LLC typically comes with a lower loan-to-value ratio and higher interest rate.
A real example of what debt disputes can look like: a seller's ex-girlfriend, who had contributed roughly 5% of the purchase money (versus the seller's 95%) but was kept off the title because of her debt, filed a document with the court once the property was listed for sale, asserting an ownership claim. It surfaced in the title search, delayed closing, and nearly derailed the sale; the seller ultimately paid her more than he wanted to and she got less than she wanted. Trying to work around a debt issue informally can be risky and can leave you unable to use Joint Tenants with the Right of Survivorship at all.
Ownership disputes between Joint Tenants or Tenants in Common can be ended through a court action called a Partition lawsuit, which can force a sale. To help avoid that outcome, co-owners can include a Right of First Refusal clause in their agreement, giving each owner the right to buy out another's share (at a price based on an appraisal or broker price opinion, for example) before it's sold to an outside buyer. As with any non-standard legal agreement, an attorney should review it. If a Tenant in Common dies without addressing their share in a will, it typically passes to their closest living relatives through probate.
To avoid a court appointing an administrator for your estate, you should have a will naming an executor to carry out your wishes. A will can be attorney-drafted or created with a reputable do-it-yourself program, but at minimum, have one in place.
Living Trust
You transfer assets into a trust that you continue to control and use during your lifetime; on death, those assets pass to your named beneficiaries outside of probate. As Grantor, you set the trust's terms and typically name yourself as trustee (with a successor trustee to take over after your death or incapacity), or you can name someone else as trustee from the start.
Lady Bird Deed (Enhanced Life Estate Deed)
The original owner keeps full freedom to deal with the property — sell it, change the beneficiary, or undo the deed entirely — without needing the beneficiary's consent, because the life estate is paired with an unrestricted power to convey during the Grantor's lifetime.
Life Estate and Remainder Interest
Splits ownership into a current interest and a future interest via a deed, trust, or will. The Life Tenant (often the Grantor themselves) has full use of the property during their lifetime — and the responsibility for taxes, mortgage, and upkeep — but can't sell, mortgage, materially alter, or damage the property without the Remainderman (the future beneficiary) signing off. On the Life Tenant's death, the life estate ends and full ownership passes to the Remainderman, generally outside of probate. A Life Tenant can sell their own interest, which creates a Life Estate Pur Autre Vie — a life estate measured by a third person's lifespan rather than the original tenant's. Discuss the risks with an attorney: if the expected order of deaths doesn't play out as planned, the property can end up in the Remainderman's probate instead of avoiding probate altogether.
Step-up basis: say a property was bought for $300,000 and is worth $400,000 at death. Heirs who inherit through a Life Estate receive it at the $400,000 value and owe no capital gains tax on that $100,000 of appreciation — this is called the stepped-up basis. It determines whether an heir who later sells is taxed on gains measured from the original purchase price or from the value at inheritance.
Property can be purchased through a business entity — common among home flippers and others looking to limit certain types of liability. Contrary to popular belief, buying through an entity usually won't shield your identity as owner; some attorneys structure a Florida/Nevada LLC arrangement to make ownership harder to trace, but that approach tends to be expensive and specialized, and finding an attorney who does it properly can be a challenge.
Under the Florida Constitution, a creditor generally cannot place a lien on or force the sale of a home that qualifies as a homestead, no matter how much money is invested into it — provided every co-owner qualifies for the exemption. Homestead property is defined as the home and attached land serving as an individual's or family's primary residence, and it covers single-family homes, condos, mobile homes, and manufactured homes. Only a natural person can qualify; a corporation or LLC cannot.
Qualifying conditions (all three required): an acreage limit of 160 acres, at least one year of residency before qualifying, and occupancy by January 1 of the exemption year with an application filed by March 1.
Married couples are treated as a single unit, each with an undivided interest — if either spouse qualifies for the exemption, the property is protected from either spouse's creditors. Divorce converts the ownership to Tenants in Common, and from there, if one co-owner doesn't qualify for the exemption and runs up debt, a judgment creditor can be awarded that owner's interest and pursue a Partition sale. If all co-owners qualify, the homestead creates a full shield; if someone owns part of the property but doesn't live there, the exemption doesn't protect that person's share from their creditors.
Renting the home for more than 30 days can forfeit the homestead exemption, per Florida Statute 196.061 on rental of homestead constituting abandonment — with an exception for members of the U.S. Armed Forces serving under a mandatory Selective Service obligation.
Exceptions to the homestead exemption
State and county taxes: the state, counties, and municipalities can still force a tax sale for unpaid property taxes — homestead status doesn't prevent it.
Mortgages: a mortgage lender or any party the property was specifically pledged to as collateral can still foreclose.
Contractor's liens: unpaid contractors can place a mechanic's lien on the property; bonding options exist to set one aside, but it's a decision about whether the fight is worth it.
Condo/HOA liens: an association lien placed on the property before the homestead was established may still be collectible from the home.
Non-resident co-owners: a co-owner who doesn't live at the property as a primary residence isn't covered by that homestead exemption, and their creditors can potentially force a sale of the property.
On death, if the property was the deceased's primary residence, the homestead protection can continue — but the people inheriting it must petition the probate court specifically to keep the exemption intact. Skipping that petition means losing it. Speak with a probate attorney about the process and any other variables that apply to your situation.
Florida is an Equitable Distribution state: marital property is divided based on factors that separate what was owned before the marriage from what was acquired during it, though variables can change how pre-marriage property gets treated. If you own real estate or other significant property and are facing divorce, consult an attorney who specializes in family law.
Fee Simple Absolute
Complete ownership. You can do what you want with the property, subject to local, state, and federal law.
Fee Simple Defeasible
Similar to Fee Simple Absolute, but with a condition attached. If the condition is broken or goes unmet, ownership reverts to the original owner or a named third party.
The Bundle of Rights
Ownership carries several distinct legal rights, the core of which are:
- Possession — the title holder is the legal owner
- Control — use of the property in any legal manner
- Exclusion — the right to limit who may enter (with some exceptions)
- Enjoyment — use of the property however the owner sees fit, within legal use
- Disposition — the right to sell, transfer, or otherwise dispose of it
Disclaimer: this article provides a general understanding of ownership types and rights in Florida real estate. It is not legal advice, and the author is a real estate broker, not an attorney or a law firm. For advice specific to your situation, consult a Florida attorney who handles the relevant subject matter. Information here is believed accurate but not guaranteed.