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Issue: When must a deed recite the marital status of the parties?
Answer: This question comes up a lot. Why does it matter sometimes whether a party is married, and other times not?
The issue concerns conveyance of Florida homestead. The Florida Constitution prohibits a married person from conveying (or mortgaging) the principal residence without the joinder of his or her spouse. If the property being conveyed is not homestead, then it is necessary only to recite in the deed that the property is not homestead, and then it is not necessary to reference the marital status of the grantor. If the grantor is unmarried, then it is irrelevant whether the property is homestead at all – and in that case the deed should reflect that the grantor is unmarried. If the property is homestead, and the grantor is married, then it is necessary to have the spouse of the grantor “join” the deed, essentially signed consent to the conveyance of the residence.
Note: where a spouse is joining in the execution of the deed along with the titled spouse grantor, the joining spouse is not necessarily making any warranties as to title. Instead, he or she is simply consenting to the conveyance (or mortgage as the case may be).
In conclusion, every deed from an individual should 1) recite whether the property is homestead; and if homestead, then 2) recite the marital status of the grantor; and if homestead conveyed by one person, then 3) the spouse of the grantor should join in executing the deed (or mortgage as the case may be).
A completely separate issue arises when the grantees are married. Florida law has a presumption that conveyance to married people creates rights of survivorship (“tenants by the entireties”), unless a contrary intention is stated. Thus, it is not necessary, though helpful, to recite whether two grantees are married to each other.
Clark Partington’s Real Estate Group is equipped to answer questions related to your specific situation. With offices in Pensacola, Destin, Santa Rosa Beach, Tallahassee, and Orange Beach (Alabama), we are a full-service firm covering this part of the Gulf Coast. To reach one of Clark Partington’s Real Estate attorneys, contact Richard Sherrill at (850) 434-3276 or rsherrill@clarkpartington.com; or, Charles James at (850) 436-6466 or cjames@clarkpartington.com.
This publication should not be construed as legal advice. Its applicability is dependent upon specific facts and circumstances and is provided for informational purposes only. You should not act upon this information without seeking advice from a lawyer licensed in your own state.
