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Failed Tenancy By the Entireties Converts to Tenancy in Common

Most married couples elect to hold their real property as tenants by the entirety.  A tenancy by the entirety is similar to a joint tenancy, except that it is reserved for married couples.  One of the advantages to a tenancy by the entirety in Florida is that the property is protected against creditor claims that may be made against one of the spouses.


But what happens to the real property that is purported to be held as a tenancy by the entirety if the marriage is not valid? 

Although it is increasingly rare nowadays in the digital age, historically a man or woman might have entered into a marriage prior to the dissolution of their previous marriage based simply on a lack of knowledge or available information concerning their fiancé.  Traditionally, this would happen when an individual, following a separation or estrangement from his or her spouse would relocate without properly dissolving the prior marriage.  He or she would then remarry after settling in a new locale.  Although much rarer in an age when records can be reviewed online, it does still happen that someone may enter a marriage while still married to someone else.

The Supreme Court of Florida has held that the tenancy by the entireties is invalidated if the marriage is void.  In its place, the tenenacy by the entireties is converted into a tenancy in common.   

In Burger v. Burger, 166 So. 2d 433 (Fla. 1964), the Court found that the marriage was void ab initio because one of the parties to the divorce proceeding had a living spouse at the time of the marriage that was the subject of the divorce proceeding. Id. at 435.  With regard to the jointly held property between the two individuals who are no longer—and were never spouses—the Court held:

In a proceeding of this kind the chancellor can also dispose of the rights of parties in property jointly owned.  Inasmuch as there was no valid marriage, no estate by the entirety could be created.  If there was jointly-owned property the parties should be considered tenants in common.

Had the parties owned the property as a tenancy with rights of survivorship, instead of an (invalid) tenancy by the entireties, the surviving owner would end up owning the entire property, not just half. 

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