Joint Ownership and Survivorship Pitfalls in Florida Estate Planning

Joint ownership with right of survivorship is a way of titling property so that, when one owner dies, the asset passes automatically to the surviving owner outside of probate. In Florida it is not the default rule: under Florida Statute 689.15, a conveyance to two or more people creates a tenancy in common (no survivorship) unless the document expressly says otherwise or the owners are a married couple holding as tenants by the entireties. That single distinction is where a surprising number of West Palm Beach estate plans quietly come apart.

I have sat across the table from too many widows and adult children who assumed that adding a name to a deed or a bank account was a tidy substitute for a will or a trust. Sometimes it works. Often it creates a mess that costs far more than the lawyer they were trying to avoid. If you are a retiree or a seasonal resident splitting time between Palm Beach and somewhere up north, the stakes are higher still, because you are juggling property in two states and two sets of rules.

Why Joint Ownership Looks So Appealing (and Why That Is the Trap)

The appeal is obvious. Joint titling is free, it happens at the bank counter or the closing table, and it promises to skip probate. For a snowbird who dreads the idea of a Florida court process while the family is back in Connecticut or Ohio, “just put both names on it” sounds like the whole estate plan in one sentence.

The problem is that joint ownership is a blunt instrument doing a job that calls for a scalpel. It moves a single asset to a single person, immediately, with no instructions, no contingency, and no protection. Everything your will or trust would have handled — what happens if that co-owner dies first, what happens if you both die together, who pays the estate’s debts, how to treat children fairly — joint titling simply ignores.

The Florida Rules You Cannot Ignore

Tenancy in common is the default, not survivorship

Many people are shocked to learn this. If a Florida deed names “John Smith and Mary Jones” with no survivorship language, the law presumes a tenancy in common. When one of them dies, that person’s half does not go to the other owner. It goes through that person’s estate — meaning probate, meaning their will (or the intestacy statute) controls. Section 689.15 is explicit: the right of survivorship “shall not prevail in this state” unless the instrument expressly provides for it.

So the deed that was supposed to avoid probate accomplishes the opposite, because nobody added the magic words.

Tenancy by the entireties: powerful, but only for spouses

Married couples in Florida get a special form of joint ownership called tenancy by the entireties (TBE). It carries automatic survivorship and a strong creditor-protection feature: a creditor of one spouse generally cannot reach property the couple holds as tenants by the entireties. Florida courts presume entireties ownership of real estate held by a married couple, and after Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), a similar presumption applies to bank accounts titled in both spouses’ names unless the signature card disclaims it.

Two cautions, though. First, TBE evaporates on divorce — the statute converts those owners into tenants in common. Second, TBE protection is only as good as the unities behind it; sloppy account paperwork can defeat the presumption. It is a fine tool for married couples, but it is not a comprehensive plan, and it does nothing for the second death.

Where Joint Ownership Quietly Wrecks an Estate Plan

Here are the failures I see most often in Palm Beach County. None of them are exotic. They happen to careful, well-meaning people.

• The accidental disinheritance. A widower adds his oldest daughter to the deed for “convenience.” When he dies, the house belongs entirely to that daughter by survivorship — not to all three children equally, the way his will says. The will is powerless because the house never entered his estate. His other two children inherit a lawsuit instead of a home.
• Exposure to the co-owner’s problems. The moment you make someone a joint owner, their creditors, their divorce, their bankruptcy, and their lawsuits attach to your asset. A car accident your son causes can put a lien on the Florida condo you co-own with him.
• The gift tax surprise. Adding a non-spouse as a joint owner can be a reportable gift. Retitling a paid-off home into joint names with a child is not the harmless act it appears to be.
• Loss of the stepped-up basis. Property inherited at death generally gets a new cost basis equal to its date-of-death value, wiping out decades of capital gain. Property received as a lifetime joint gift often does not get that full step-up, so the heir inherits a tax bill on the appreciation.
• The simultaneous-death gap. Joint ownership assumes someone survives. If both owners die in the same accident, or if the survivor dies before retitling, the asset can land right back in probate — sometimes in the wrong state’s probate.
• The frozen account. A “convenience” co-owner who turns out to be the wrong person, or who predeceases you, can leave funds tied up exactly when a surviving spouse needs cash for funeral and living expenses.

Special Hazards for Snowbirds and Seasonal Residents

If you split the year between Florida and a northern state, joint ownership multiplies its dangers. Each state has its own survivorship rules, its own homestead law, and its own probate court. A New York co-op or condo and a Palm Beach condo titled the same way can produce wildly different results.

Florida’s homestead protection is a particular tripwire. Our constitution restricts how a homestead can be devised when there is a surviving spouse or minor child, and it imposes powerful creditor protections that do not travel with you. Bolting a child’s name onto your homestead deed can inadvertently sever that protection or trigger the constitutional devise restrictions. New York handles the transfer of a residence and the use of under its own framework entirely, which is why a plan that works on a Long Island house can backfire on a Boca-adjacent condo.

For dual-state owners, the goal is to keep each property’s transfer mechanism matched to the state where it sits, and to coordinate the two so they do not contradict each other. That is exactly the kind of coordination that joint titling cannot provide and a properly drafted revocable trust can.

Better Tools Than “Just Add a Name”

Avoiding probate is a legitimate goal. The point is not to keep your assets in court; it is to do it without the collateral damage. There are cleaner instruments:

1. A revocable living trust. You keep full control during life, name backup beneficiaries, build in contingencies for simultaneous death, and avoid probate in every state where you hold trust property. For a snowbird with property in two states, this is usually the centerpiece.
2. A Florida enhanced life estate (“Lady Bird”) deed. This lets you keep complete control of your homestead during life — sell it, mortgage it, change your mind — while naming who receives it at death, all without a present gift and without losing homestead protection or the basis step-up.
3. Beneficiary and payable-on-death designations. POD on bank accounts and TOD on brokerage accounts pass funds directly without giving the beneficiary any access or control while you are alive.
4. A properly executed will. Even a probate-avoidance plan needs a backstop. A clear catches anything that falls outside the trust and names your personal representative and guardians.
5. A durable power of attorney and health care directives. Joint ownership does nothing for incapacity. These documents do.

Married couples can still use tenancy by the entireties for its creditor protection — but as one layer inside a real plan, not as the plan itself.

How to Audit Your Current Titling

Pull your deeds and your most recent account statements and ask three questions about each asset. First, exactly how is it titled — tenants in common, joint with survivorship, tenants by the entireties, or in a trust? Second, if I died tomorrow, where does this asset actually go, and does that match my will or trust? Third, what happens if the other owner dies first, or if we die together?

If you cannot answer all three with confidence, your plan has a hole. The good news is that titling is fixable, and it is far cheaper to fix while you are alive and well than to litigate after the fact. A Florida attorney who handles these matters can reconcile your deeds, accounts, and documents into one coherent plan. You can review your estate planning options with the , walk through the basics on our wills page, or learn how the Florida probate process works if a loved one’s titling has already created a problem.

The Bottom Line

Joint ownership is a tool, not a strategy. Used deliberately — entireties between spouses, a carefully drafted survivorship deed where it genuinely fits — it has a place. Used reflexively, as a do-it-yourself substitute for an estate plan, it disinherits children, exposes assets to other people’s creditors, triggers needless taxes, and drags families into the very probate they were trying to avoid. For Palm Beach retirees and seasonal residents in particular, the cost of getting titling wrong is measured in years and tens of thousands of dollars. Getting it right is measured in a single afternoon with the right attorney. Contact our office to make sure your titling and your wishes are actually telling the same story.

Frequently Asked Questions

Does joint ownership automatically include the right of survivorship in Florida?

No. Under Florida Statute 689.15, a conveyance to two or more people is presumed to be a tenancy in common with no survivorship unless the document expressly provides for the right of survivorship, or unless the owners are a married couple holding as tenants by the entireties. Many people wrongly assume their joint deed avoids probate when it actually does not.

What is tenancy by the entireties, and who can use it?

Tenancy by the entireties (TBE) is a special form of co-ownership available only to married couples in Florida. It carries automatic survivorship and strong creditor protection, meaning a creditor of one spouse generally cannot reach the jointly held property. Florida courts presume entireties ownership for real estate and, after Beal Bank v. Almand (Fla. 2001), for spousal bank accounts. TBE ends on divorce, converting the owners into tenants in common.

Why is adding my child to my deed risky?

Making a child a joint owner can expose your property to that child’s creditors, divorce, or lawsuits; it may be a reportable taxable gift; it can cost your heirs the full stepped-up basis at death; and through survivorship it can unintentionally disinherit your other children regardless of what your will says. A Lady Bird deed or a revocable trust usually accomplishes the goal without these side effects.

I split the year between Florida and another state. Why does joint titling matter more for me?

Each state has its own survivorship, homestead, and probate rules. Identical joint titling can produce different results on your Florida condo than on your northern home, and Florida homestead protections do not travel with you. Improper titling can sever homestead protection or trigger Florida’s constitutional devise restrictions. A coordinated revocable trust generally serves dual-state owners far better than joint ownership.

What should I use instead of joint ownership to avoid probate?

Common alternatives include a revocable living trust, a Florida enhanced life estate (Lady Bird) deed for your homestead, and payable-on-death or transfer-on-death designations on financial accounts, all backed by a will, durable power of attorney, and health care directives. These avoid probate while preserving control, creditor protection, and tax advantages that joint titling sacrifices.