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jojo55 · May 12, 2010, 06:52 PM

I'm married but wife and I are separated, not legally separated though - just living apart with no legal arrangements made!

We own numerous properties together. They are mostly located in Florida and one is in Oklahoma.
We purchased them all as "James B and Sarah B, husband and wife"... one of the deeds does not say husband and wife, just "James B and Sarah B".

What's the ownership of these properties... joint tenancy, tenants in common or tenants by the entirety?

I am setting up an individual living trust and I want everything to go to my children. Can I (and does it make sense to) put "my share" of each property into the trust of which my children are the beneficiaries? Or would my wife own the entire property anyway if I died?

cdad · May 12, 2010, 07:00 PM

Some of it is going to depend on the state that you live in now and how the laws provide for it. The biggest problem is how to deal with the properties after the fact. Is there any way of you and your now spouse being able to settle things in the here and now? It would simplify things for later. Do you both live in the same state?

jojo55 · May 13, 2010, 06:27 AM

My wife and I both live in Florida.

jojo55 · May 13, 2010, 07:17 AM

I did a little more research:
Both Florida and Oklahoma were we own property recognize "tenancy by the entirety" and since we made no other election when we purchased the property I presume we hold title that way.
With "tenancy by the entirety" one spouse can not give up their interest in the property without the consent of the other. Therefore even if it was possible to transfer it to my living trust (I'm still not sure if it is) it would make no sense at all.
Can somebody confirm this?

AK lawyer · May 13, 2010, 08:00 AM

Originally Posted by jojo55

I did a little more research:
Both Florida and Oklahoma were we own property recognize "tenancy by the entirety" and since we made no other election when we purchased the property I presume we hold title that way.
With "tenancy by the entirety" one spouse can not give up their interest in the property without the consent of the other. Therefore even if it was possible to transfer it to my living trust (I'm still not sure if it is) it would make no sense at all.
Can somebody confirm this?

In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise

Concurrent estate - Wikipedia, the free encyclopedia

I looked at the Florida statutes for a definitive answer to this question and although I didn't find it, there is language to suggest that the presumption of a TBE holds. It may or may be the same in Olkahoma. I didn't try to research the law there.

Assuming this is the case, if you transferred you interest into the trust, the trust would get each piece of property if and when you survived your wife. So, assuming you are still married when she dies, the property would go to the trust.

It would, of course, make sense for you and your wife to agree to a division of your several properties now. Is this possible?

jojo55 · May 13, 2010, 08:54 AM

Thanks for that answer. So I take it that there is really no benefit for me to transfer it to the trust.
- If I survived my wife the properties would go to my trust - yes. But I could still transfer it at that time.
- If I died first my wife would own the entire property, not the beneficiaries of my trust (kids) 50% and my wife 50%... right?

So no reason to transfer it to the trust right now. My point was giving it to the kids rather than my wife.

I think we will eventually come up with an agreement how to divide the properties yes, but I think that's not going to happen the next few months (maybe not for years) but at some point it will.

AK lawyer · May 13, 2010, 09:21 AM

Originally Posted by jojo55

Thanks for that answer. So I take it that there is really no benefit for me to transfer it to the trust.
- If I survived my wife the properties would go to my trust - yes. But I could still transfer it at that time.
- If I died first my wife would own the entire property, not the beneficiaries of my trust (kids) 50% and my wife 50% ... right?

Right.

The only benefit of putting it in the trust now would be if, after her death, you never got around to putting your affairs in order.