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Clearing Jointly Owned Real Property Title on the Death of a Spouse

August 11th, 2014

Posted in Asset Protection,Estate & Personal Planning,Real Estate Law

Many married couples jointly own their home or other Florida real property.  It is easy to overlook the legal transfer of such jointly held property when faced with the death of a husband or wife.  However, clearing title to real estate following the death of a loved one is an important consideration and should be promptly addressed by the surviving family and a licensed Florida attorney where possible.

Generally, there is a three-step process under Florida law to ensure title of jointly owned real property is fully and properly transferred into the name of the surviving spouse:

1.         A certified copy of the death certificate must be recorded with the Clerk of Court in the county where the property is located.  If property is owned in more than one county, a separate recording is required for each county.

2.         The surviving spouse must execute and record an Affidavit of Continuous Marriage, stating under oath that the couple was and remained married to each other without an intervening divorce from the date the property was acquired to the date of the death of the deceased spouse.

3.         An Affidavit of No Florida Estate Tax should be recorded.  The Affidavit of No Florida Estate Tax indicates that the estate will not be required to file a state estate tax return and notifies interested parties of whether or not the estate will be required to file a federal estate tax return.

Until title is cleared through the above process, the jointly held property cannot be sold.  If not addressed until the surviving spouse desires to sell the property, it may result in a delayed closing while title is cleared.  If discovered only after the death of the second spouse, the surviving beneficiaries may be forced to address the matter before the second spouse’s estate can be fully administered.  In summary, if you have recently lost a loved one, you should seek assistance from a qualified Florida lawyer to make sure that title to real estate is properly cleared and vested in the sole name of the surviving spouse.

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