Florida isn’t the marrying kind, apparently. The United States is hitting record lows for marriage rates, and Florida is even lower than the national average with less than 16 people per 1,000 people getting married each year. If you have no upcoming plans to get married—you are the majority! Being an unmarried couple has its benefits, such as maintaining your monthly alimony from a prior divorce or sustaining financial aid awarded to your college-aged student. Surely there are additional reasons people are not marrying their significant other but it is hard to pinpoint exactly why fewer and fewer Floridians are tying the knot.
We believe the COVID-19 pandemic is in part to blame. It is unsafe to have large gatherings and venues have closed and re-opened only to close again. There have also been significant shifts in economic and cultural realities across the board. Younger generations are pulling away from traditional values, and the reality is that buying a home is not as easy as it was for the Boomers and Gen X. People are still falling in love and starting families—really doing all of the things that married couples do– but without the marriage license.
So, if you are in a devoted partnership where the two of you live together and share property, what does a split look like? We mean, legally speaking. Who gets the dog? Who keeps the car? What about my Funko Pop collection? (We are willing to part with the ‘08 Honda Civic if it means we can keep the baby Groot funko.) What happens if one of you is incapacitated or passes away? Because the State of Florida does not recognize Common Marriage Law, these are valid questions that folks without legal experience in this arena may not have answers to. We have written about the rights of unmarried couples before, and due to the popularity of this topic and our experience in Family Law, we will focus specifically on property rights for unmarried couples.
In the event of separation…
Cohabitating couples should be aware of legal rights available to them and their significant others. Unlike married couples who have an entire Florida Statute dedicated to guiding how the married couple should divide their property, unmarried couples are left with many more questions than answers.
For homeownership, the deed dictates the division. Whoever owns the property on the deed receives the property after the breakup. If the parties purchased the property together, they likely own the property as Joint Tenants or Tenants in Common.
If the partners own the property as joint tenants, each partner owns an equal share of the property; this will be specifically acknowledged in the event of a break-up, each partner and joint tenant will take one-half ownership (and equity or liability) of the property. In the event one of the Joint Tenants passes away, the surviving Partner owns the property 100%. The deceased partner has no ownership for inheritance.
Conversely, Tenants-In-Common owners own the property in proportion to a specific amount, which is typically the proportion each party financially contributes to the purchase or upkeep of the property. This is also the default property ownership in Florida meaning unless the property deed specifically states “Joint Tenants”, the partners will own the property as Tenants-In-Common. For example, if Partner A contributes 30% toward the down payment, maintenance, and mortgage and Partner B pays for 70% of the same bills,
“Partner A shall have 30% interest and Partner B shall have 70% interest in said property”. If the parties remain together and one partner dies, the survivor is only entitled to their share of the property. The deceased partner’s share will pass to the deceased partner’s estate to be probated. If one partner desires to dissolve the relationship and co-ownership, they can always sell or transfer ownership of the property to someone else, even a stranger!
For everything outside of property—debts, assets, banking accounts—these are assumed to be each individual’s responsibility. This differs from marriage, where things are considered jointly owned once divorce proceedings begin. So, watch how much swiping your credit cards as compared to your partner. They will pay none of the debt they may help you incur in the event of separation. If you drive their car, don’t assume it’ll become yours even if you paid insurance and maintenance costs for years.
In Florida, the law says you’re lucky you’re not getting fined for being an unmarried couple living together! You are really on your own when it comes to dividing property and it can be taken to court, where things aren’t always pretty. As far as legal work goes, the cost for writing up a Tenant Agreement is nothing compared to divorce or going to court.
In the event of incapacitation or death…
Unmarried couples may be with each other ‘till death do them part. Last Will and Testament, beneficiary designations, and joint ownership are all great fail-safes for unmarried couples. In the event that your partner needs to make decisions about medical care, finances, or child care you will need additional documents in place.
Last Will and Testament – Without a will, the things you leave behind will go to your next of kin, which may be children (in any), parents, siblings but not your partner. Having a Last Will and Testament will ensure your partner inherits from you.
Living trust – A living trust is a similar option to a last will and testament and great for people who want their surviving partner to avoid the hassle and costs of probate. The trust allows the Trust-maker to maintain control of the trust assets (such as property, money, personal property) after the Trust-maker passes. This may be particularly important if the Trust-maker wants to ensure their partner is cared for during their life but the remaining assets are passed to the Trust-maker’s family, who is not the family of the surviving partner.
Beneficiary Designations – You can ensure your partner has access to funds and property by naming the partner as a beneficiary on any account that permits these designations. Failure to do so would result in your estate or next of kin receiving these funds and not your partner.
Joint Ownership of Accounts – By naming your partner as a joint owner of an account, the survivor on the account would have 100% ownership. This means that if you and your partner share a checking account and you pass away, your partner would keep this property solely. This account would not become part of your estate or be inherited by anyone else. But beware! Co-owning assets opens you up to liability should one of you be sued. The account could be seized to pay you or your partner’s debts. Co-ownership also means that either partner can liquidate and empty the account without the other’s permission should there be a break up of the relationship.
Power of Attorney – Your partner does not have the authority to make decisions on your behalf. A durable power of attorney allows your partner to make business, legal, and financial decisions for you. This could include paying bills or filing tax returns in the event that you are unable to.
Health Care Surrogate – A health care surrogate allows your partner to make healthcare decisions for you that you would have made under the same circumstances. Without this document, your partner who likely has more intimate knowledge of you and your wishes, cannot make health care decisions for you. In the event of the worst-case scenario of either a break-up or the death of a partner, you will not want to be encumbered by legal technicalities and roadblocks. Your attention will likely be navigating the emotional turmoil that comes with this life shift. Instead, plan ahead. That is something we at McCart and Tesmer can handle for you.
Get in touch with us today to ensure that even if you are an unmarried couple, you and your property are still protected.
