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Is probate required if a person dies owning assets titled jointly with their spouse?

On Behalf of | Oct 14, 2013 | Probate |

For assets which the deceased person owned jointly with their spouse, in most instances in Florida, probate is not necessary. At the death of the first spouse, these assets vest title in the surviving spouse automatically.

When assets are titled jointly with a spouse, in most instances these assets pass to the surviving spouse directly. No probate is required. For example, if real estate is jointly owned by spouses, the surviving spouse becomes the sole owner when the first spouse dies. This is one reason that the title to real estate owned by spouses should specify as “husband and wife” or “John Smith and Mary Smith, his wife.” If the title to real estate includes that language, the surviving spouse automatically becomes the sole owner of the real estate. No probate is required. All that the surviving spouse may want to consider doing is to record a death certificate in the county where the real estate is located. This lets the world know that one spouse is deceased and that title is now vested in the surviving spouse.

With non-real estate assets owned jointly by spouses, in most instances there’s a presumption that ownership passes to the surviving spouse at the death of the first spouse. A great example is with bank accounts. If a checking account is titled in the name of “John and Mary” and if John and Mary are married, then when John dies, Mary becomes the sole owner of the account. No probate is required. All that Mary may have to do is to submit some completed paperwork and a death certificate to the bank. Once that’s done, the account becomes her sole property.

An experienced Florida probate lawyer will tell you that one of the few exceptions to this rule of joint ownership between spouses is when ownership is specifically designated as “tenants in common and not as tenants by the entireties.” If a married couple intentionally lists ownership in that way, then each owns a separate one-half interest and when one spouse dies, probate is necessary to deal with the deceased spouse’s half.


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