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  1. #1
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    Nov 2010
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    Default Buying Land from Surviving Spouse

    Florida

    A couple in Mass. owned a lot in Florida and I am buying it from the surviving spouse. Their deed is worded as husband and wife. Husband has been deceased for 10 years.

    Question on wording the new deed conveying the lot to me: Should the original names (both husband and wife) be shown as the Grantors or should just the surviving spouseís name be shown as the Grantor? Or, should both names be shown as the Grantor with the husbands name noted as deceased?

    I have an original copy of the certified death certificate to record with the deed also.

    I canít seem to find any guidance on this and I got different answers from 2 attorneys.

  2. #2
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    Default Re: Buying Land from Surviving Spouse

    If it just says "HUSBAND and WIFE" you have tenancy in common. She *DOES NOT* own the entire property and can not convey it all to you. Florida is rather strict, no only must joint tenancy exist to have survivors rights, that right (e.g,. JOINT TENANTS WITH RIGHT OF SURVIVORSHIP) must be specfically stated.

    At this point, the property will need to be probated to deed the deceased's share to her (in fact, if their are descendents of the deceased, she may not in fact, own it at all). The spouse can not convey the property of the dead man. It has to be done by the court.

    You always *ALWAYS* want owner's title insurance. The title insurer will catch this for sure and insist on it being corrected before they issue the policy.

    Find the lawyer who told you about what I did, and get them to negotiate with the widow about fixing this.

  3. #3
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    Nov 2010
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    Default Re: Buying Land from Surviving Spouse

    Thanks. That was my thinking as well. They swapped their lot with the developer and the developer made the current deed which appeared to be wrong. Their original was correct.

    Thanks again

  4. #4
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    Apr 2009
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    Default Re: Buying Land from Surviving Spouse

    Quote Quoting flyingron
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    If it just says "HUSBAND and WIFE" you have tenancy in common. She *DOES NOT* own the entire property and can not convey it all to you. Florida is rather strict, no only must joint tenancy exist to have survivors rights, that right (e.g,. JOINT TENANTS WITH RIGHT OF SURVIVORSHIP) must be specfically stated.
    Ron - I believe that is incorrect with regard to a husband and wife. The presumption is that a husband and wife who co-own property own the property as tenants by the entirety.

    689.15 Estates by survivorship.—The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.

  5. #5
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    Default Re: Buying Land from Surviving Spouse

    You're right, upon furhter checking, if they acquired the property after they were married and it doesn't explicitly spell out the form of tenancy the presumption is tenancy by the entirety. You should still however get the death recorded or whatever the state wants to assert that the widow does indeed own it BEFORE she executes the deed to you.

    As stated, this is the sort of things that title insurers live for. They will tell you what they expect to transfer valid title to you and then they will WARRANTY that interpretation.

  6. #6
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    Nov 2010
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    Default Re: Buying Land from Surviving Spouse

    I also found that exception if title says husband and wife yesterday.

    I agree that this is confusing because it seems different states have different rules!

    I have the certified death certificate in hand and will record it with the deed.

    Thanks for the help

  7. #7
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    Default Re: Buying Land from Surviving Spouse

    You should contact the courthouse and make sure the death certificate is all they require to remove the deceased's interest.
    Again, OWNER'S TITLE INSURANCE.
    I won't take property from my sainted aunt without owner's title insurance.

  8. #8
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    Apr 2009
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    Default Re: Buying Land from Surviving Spouse

    Quote Quoting RexLan
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    I agree that this is confusing because it seems different states have different rules!
    Well, that's that federalism thing for ya!

    But I do think that most states that recognize TBE also make the presumption that spouses own by TBE as long as the 6 unities are met. At least for real property.

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