Rarely is Probate Needed for Florida Property when one spouse dies.
The general rule in Florida is that, even if the deed does not identify two owners as husband and wife, if they are indeed legally married most likely the couple owns the property as “tenants by the entirety” (TBE). TBE ownership means that no probate administration is needed when one spouse dies, as the surviving spouse automatically becomes the sole owner, by operation of law All that is needed is to record the death certificate in the county records.
There are exceptions:
1. If the deed put title in the name of the couple as tenants in common, that is not TBE and there is not automatic ownership by the survivor.
2. Common law marriages do not count. Unless the common law marriage is recognized in the state in which it was created, under Florida law the couple is not married.
3. The couple must be legally married when they acquired title, when the one died, and at all times in between. If at any of these times they were not legally married, TBE is not how they own it.
Still unsettled are the rights of same-sex marriages. Logically the same law would apply, but title insurers are notoriously conservative. Until there is Florida case law extending the property rights of a spouse to same-sex marriages, the law is not clear.
What is settled is that “separated” or ”filed for divorced” is not divorced. Until a divorce decree is signed and recorded, TBE is not affected.