Joint tenancy with right of survivorship in Florida

Section 01What JTWROS is, and the Florida default

Joint tenancy with right of survivorship is co-ownership with a built-in transfer at death: when one owner dies, their share does not go to their estate, it passes automatically to the surviving owners. That automatic passing is exactly what keeps the property out of ancillary probate, which is why it is one of the standard ways a Canadian can hold a Florida home so the heirs avoid a Florida court proceeding.

The trap is that Florida does not assume it. Under Florida Statutes 689.15, a conveyance to two or more people creates a tenancy in common, not a joint tenancy, unless the instrument expressly provides for the right of survivorship. A tenancy in common has no survivorship: when one owner dies, their share passes through their estate, which for a Florida property means ancillary probate. So two people can buy a condo together, both be on the deed, and still have no survivorship at all if the deed does not say so.

This makes the wording of the deed the whole game. The difference between a clean transfer at death and a full ancillary probate can come down to a single missing clause. A Canadian who intends survivorship has to make sure the deed actually creates it, rather than assuming that joint ownership is enough.

Section 02The four unities

Beyond the express survivorship language, a joint tenancy has to meet four conditions, known at common law as the four unities. The unity of possession means each owner has the right to possess the whole property. The unity of title means the owners take under the same instrument, the same deed. The unity of time means their interests begin at the same moment. The unity of interest means they hold equal, undivided shares.

In practice this means a joint tenancy is created cleanly when the co-owners acquire the property together, in equal shares, on one deed, with the survivorship language included. Adding a person to an existing deed later, or giving co-owners unequal shares, can break one of the unities and prevent a valid joint tenancy from forming, leaving a tenancy in common instead. When survivorship matters, the deed should be set up correctly at acquisition rather than patched afterward.

Section 03How to create it

Because Florida will not infer survivorship, the deed has to spell it out. The standard language is to grant the property to the owners "as joint tenants with right of survivorship and not as tenants in common." That phrase does two jobs at once: it states the survivorship, and it rejects the default tenancy in common, leaving no room for doubt.

The lesson for a Canadian buyer is to check the deed wording at closing, not to rely on the title appearing in two names. If the deed simply names two grantees with no survivorship clause, the result is a tenancy in common, and the survivorship the buyers thought they had does not exist. A Florida real estate attorney should confirm the wording before the deed is recorded.

Section 04No creditor protection

This is the limitation that most surprises people who think joint ownership is automatically protective. A joint tenancy does nothing to shield the property from the creditors of an individual owner. A judgment creditor of one joint tenant can reach that owner's interest, and through a partition action force the property to be sold to satisfy the debt.

The damage runs further than the forced sale. When the creditor reaches one owner's interest and that interest is sold, the new owner takes it as a tenant in common, which breaks the joint tenancy and destroys the survivorship for that share. So a creditor problem belonging to one co-owner can both cost the property and quietly undo the survivorship the owners were relying on. For a married couple this is exactly the gap that tenancy by the entireties closes, which is why a couple should not settle for a plain joint tenancy.

Section 05Severance and its risks

A joint tenancy is not locked in. Any one joint tenant can sever it unilaterally, on their own, by transferring their interest to someone else, even to themselves through a new deed. Severance can also happen through a partition action, or by agreement among the owners. However it occurs, severance converts the affected share into a tenancy in common and ends the right of survivorship for that share.

The practical consequence is a loss of control that owners often do not anticipate. Because one co-owner can break the arrangement alone, none of them can be certain the survivorship will still be in place at death. A sibling who transfers their share, a co-owner who runs into a creditor, or a falling-out that leads to a partition, can each quietly undo the plan. The survivorship is only as durable as the willingness, and solvency, of every co-owner to keep it.

Section 06JTWROS for the unmarried

The one clear advantage joint tenancy has over tenancy by the entireties is its reach. Tenancy by the entireties is open only to married spouses, so it is unavailable to everyone else. Joint tenancy, by contrast, can be used by any co-owners: two siblings who buy a Florida condo together, unmarried partners, or a parent and an adult child.

For those owners, a joint tenancy with right of survivorship is the standard way to keep the Florida property out of ancillary probate, so long as they accept the trade-offs, the lack of creditor protection and the fact that any of them can break it. A married couple should reach for tenancy by the entireties instead, covered in our tenancy by the entireties guide, because it adds creditor protection and cannot be broken by one spouse alone.

Section 07Avoids probate, not US estate tax

This is the point a Canadian must not lose. Avoiding ancillary probate is a question of how title passes; US estate tax is a separate question of what the deceased owned. A Florida property held in joint tenancy still counts as a US-situs asset for US estate tax purposes, so the survivorship that skips probate does nothing to remove the property from the US estate.

Two further tax points attach to joint tenancy specifically. Putting another person onto the title, creating the joint tenancy, can itself be a taxable gift, because the owner has given away a share of the property. And at death, the value of the deceased's interest is part of the US-situs estate, which can trigger US estate tax and a Form 706-NA filing. The mechanics of the USD 60,000 threshold, the treaty credit, and the filing are in our US nonresident estate tax guide; the point here is that probate planning and estate-tax planning are two different jobs, and doing one does not do the other.

Section 08JTWROS, entireties, and tenancy in common compared

The three ways to co-own a Florida property differ in who can use them, whether they avoid probate, whether they protect against creditors, and whether one owner can break them.

As an illustration, take two Canadian siblings who buy a Florida condo together for USD 300,000 and take title as joint tenants with right of survivorship. When one sibling dies, their half passes automatically to the other, with no ancillary probate, and the survivor owns the whole condo. The dollar figure is an illustration, not a calculation for any specific case. The trade-off was live throughout: if a creditor of either sibling had obtained a judgment, that creditor could have forced a sale of the debtor sibling's interest, and the buyer would have held as a tenant in common, breaking the survivorship. Joint tenancy delivered the probate avoidance the siblings wanted, with the creditor exposure it always carries.

Section 09Common mistakes

Naming two owners with no survivorship clause. Under Florida Statutes 689.15, that creates a tenancy in common, not a joint tenancy, so there is no survivorship and the deceased's share goes through ancillary probate. The deed must expressly state the right of survivorship.

A married couple choosing joint tenancy over tenancy by the entireties. A married couple gets the same survivorship from the entireties plus creditor protection and a bar on unilateral severance. Choosing a plain joint tenancy gives up the protection for nothing, often by checking the wrong box on a form.

Assuming joint tenancy protects against creditors. It does not. A judgment creditor of one owner can reach that owner's interest and force a sale. Owners who want protection need tenancy by the entireties (for a married couple) or a different structure.

Assuming that avoiding probate avoids US estate tax. The Florida property is still US-situs for US estate tax. Skipping probate does not remove it from the US estate, and creating the joint tenancy can be a taxable gift.

Section 10Checklist

• If you are married, compare with tenancy by the entireties first; it usually wins for a couple.
• Confirm the deed expressly states "joint tenants with right of survivorship," not just two names.
• Set the joint tenancy up at acquisition, in equal shares, on one deed, to satisfy the four unities.
• Understand that there is no creditor protection: a creditor of any owner can force a sale.
• Understand that any owner can sever the arrangement alone, ending survivorship for that share.
• Account for US estate tax separately: the property is still US-situs, and creating the joint tenancy can be a taxable gift.
• Have a Florida real estate attorney confirm the deed, and a cross-border tax professional review the tax side.

Section 11FAQ

Does simply adding a co-owner avoid probate? No. Under Florida Statutes 689.15, a transfer to two or more people is a tenancy in common unless the deed expressly provides the right of survivorship. Without that clause there is no survivorship and the share goes through ancillary probate.

Are we protected from creditors in a joint tenancy? No. A judgment creditor of one owner can reach that owner's interest and force a sale. If you are married, use tenancy by the entireties, which protects against a creditor of one spouse.

Can one owner sell or transfer their share? Yes. Any joint tenant can transfer their interest, which severs the joint tenancy for that share and ends its survivorship. This is the loss of control built into a joint tenancy.

Does joint tenancy avoid US estate tax? No. The Florida property is still US-situs for US estate tax, so it stays in the US estate even though it avoids probate. See our US nonresident estate tax guide.

What other ways are there to avoid ancillary probate? A married couple can use tenancy by the entireties; any owner can use a Florida revocable living trust or a Lady Bird deed. The probate proceeding itself is explained in our Florida ancillary probate guide, and the Canadian estate in our probate fees guide.