Survivorship Deeds in Florida – Proceed with Caution

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An ambiguous deed with survivorship language creates confusion, requiring the court to interpret the ownership of real estate.

In Simon v. Koplin, (2nd DCA 2015), an individual, Mr. Simon, and a married couple, Joanne and Kent Koplin, purchased a piece of real estate.  The relevant portion of the deed sets forth how title was vested:

[to] Joseph O. Simon, an unremarried widower, as to an undivided two-thirds (2/3) interest, * * * and Joanne Koplin and Kent Koplin, husband and wife, a married woman, as to an undivided one-third (1/3) interest, as joint tenants with full rights of survivorship, * * *, grantee

Mr. Simon dies and his estate claims a two-thirds interest in the property.  The deed is unclear as to whether the survivorship clause refers only to and between Mr. and Mrs. Koplin, or refers to all three of the grantees collectively.  If the survivorship clause refers only to and between the Koplins, Mr. Simon’s estate would own two thirds of the property.  If the survivorship clause refers to all three grantees collectively, Mr. Simon’s interest would have been extinguished by the survivorship clause, leaving his estate nothing.

In constructing the deed as creating survivorship rights collectively among the three grantees, the Court explained as follows:  

Mr. Simon further argues that the express survivorship language in the deed did not create a right of survivorship between Joseph O. Simon and the Koplins but instead created only a right of survivorship between the Koplins as spouses. We are not persuaded by this characterization since “‘[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.'” Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001).  * * * As such, the survivorship language in the deed would be surplusage. See Kent v. O’Neil, 53 So. 2d 779, 780 (Fla. 1951) (en banc) (Thomas, J., concurring in part and dissenting in part) (noting that where the deed expressly provided for a right of survivorship, “[describing] the estate as one by the entirety may . . . be considered surplusage”); Cacciatore v. Fisherman’s Wharf Realty Ltd., 821 So. 2d 1251, 1254 (Fla. 4th DCA 2002) (“It would be redundant to add the words ‘with right of survivorship’ when describing the interest of a husband and wife who intend to take title to property as tenants of an estate by the entireties.”).

Because all words should have meaning and purpose, restricting the meaning of the survivorship language to the husband and wife would be surplusage.  The only way to give purpose to the language would be to apply the survivorship language to the three grantees collectively.  Accordingly, the Court held that the survivorship language applied to the three grantees together.  Mr. Simon’s interest was therefore extinguished at his death. 

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