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To Deed or Not to Deed: What to Know Before Transferring Florida Real Estate
By: Colten Thomas, Esq.
On its face, a deed looks like a simple document. Online forms make drafting seem like a fill-in-the-blank exercise, and at one or two pages, how much could go wrong?
A lot.
Preparing and executing a deed has important consequences. For one, the document generally serves to convey legal rights (ownership) in real property; not to be taken lightly. But, beyond that, a change in ownership could impact documentary stamp taxes, property taxes, mortgage obligations, homestead rights, and parties’ estate plans in ways that may not be obvious when the deed is signed. This is true even for casual transactions, without a formal purchase and sale.
With that in mind, any decision or requirement to transfer an interest in real property—whether in connection with marriage, divorce, estate planning, or simply adding or removing a family member from title—warrants thorough examination.
General Deed Requirements Under Florida Law
At its core, a deed is a legal instrument that is used to transfer an interest in real property. Florida law imposes several requirements for a deed to be properly executed and recorded.
Under Section 689.01, Florida Statutes, a conveyance of real property generally must be in writing and signed by the owner(s) in the presence of two subscribing witnesses. And, under section 695.03, an instrument concerning real property must be acknowledged or proved in the manner required by statute before it is entitled to be recorded. (In ordinary practice, that means the grantor’s signature must be acknowledged before a notary.) Section 695.26 imposes additional recording requirements, including requirements concerning the names and addresses appearing on the instrument—generally requiring the name and post-office address of each witness.
But adherence to these formalities is only part of the analysis. While a deed may be executed and recorded in compliance with the above, compliance alone does not establish that the deed is appropriate for a particular transfer, or that it accomplishes what the parties intended. The circumstances surrounding each transfer matter, particularly when a deed is prepared in connection with a marriage or divorce.
Deeds After a Divorce in Florida
Real estate is frequently one of the more significant assets that gets addressed during a dissolution of marriage (divorce) in Florida. Accordingly, as my colleagues have discussed, dividing real estate in a Florida divorce can raise important questions about ownership, mortgages, homestead and taxes. And these issues should be addressed before a transfer is made.
Not every divorce requires a separate deed transferring property. See section 61.075(4), Florida Statutes. However, many do. For example: a marital settlement agreement or final judgment may provide that one spouse will retain a certain property; and direct one or both of the parties to execute a deed that transfers title to the receiving spouse. But the circumstances surrounding the property and the contemplated transfer of interest often dictate how the deed should be prepared. Determining that status requires answering the following questions:
- Is the property the parties’ marital home/homestead, or a second home?
- Is there a mortgage?
- Are there other encumbrances on title?
- How is it titled?
- Is there other consideration for the transfer?
- Will the deed be recorded before, or after the final judgment is entered? And so on.
This is where coordination between family law and real estate counsel can be helpful. While family law counsel addresses what transfer needs to take place, real estate counsel can assist with the how—preparing the necessary deed and confirming that the transfer is completed.
Does Signing a Deed After Divorce Automatically Remove You From the Mortgage?
No. A deed transfers an ownership interest; it does not, by itself, release anyone who signed a promissory note. Ownership of a property and liability on the loan are separate legal issues, and addressing the loan generally requires a separate step (such as a refinance or an assumption approved by the lender with a written release).
Accordingly, if one spouse receives the marital home, transferring the other spouse’s interest by deed may change who owns the property, without changing who remains legally responsible to the lender. If you deed the house to a former spouse while the loan remains in your name, you generally remain liable to the lender. For that reason, marital settlement agreements often include language that requires the receiving spouse to refinance the loan by a certain date.
There is also the separate question of a due-on-sale clause. Many mortgages permit acceleration when an interest in the secured property is transferred without the lender’s consent. The Garn-St. Germain Depository Institutions Act prohibits enforcement of a due-on-sale clause for certain qualifying family and divorce-related transfers involving residential property, but it is important to consider if/when property is transferred subject to a mortgage. Moreover, while that protection may prevent a lender from accelerating the loan solely because of a qualifying transfer, it does not remove the original borrower from the note or transfer that borrower’s personal liability to the new owner.
Can You Add Your Spouse to a Deed?
Yes. Florida law expressly permits real estate to be conveyed directly between spouses, along with the creation of an “estate by the entirety”—a type of property ownership available to married couples. See Section 689.11, Florida Statutes.
Marriage itself, however, does not automatically add a spouse to record title. Someone who purchased a Florida home before marriage may continue to appear as the sole owner in the public records unless a subsequent conveyance adds their spouse to the deed. That does not mean the marriage is legally irrelevant. A spouse may hold important rights involving homestead, inheritance, or dissolution without ever appearing on the deed.
The manner in which the new deed is prepared also matters. Adding a spouse does not simply change the names appearing on title; it can change the legal form of ownership and the rights associated with the property. The parties should therefore consider how they intend to hold title, whether the property is homestead, whether it is subject to a mortgage or other encumbrance, and whether the transfer creates any tax consequences.
Can You Add Other People (Children, Family Members, Etc.) to a Deed?
Generally, yes. An owner can convey an interest in property to a child or other family member, although certain rights and existing ownership interests may affect how the transfer can and should be accomplished.
Often, an owner considers adding a child or relative to a deed as a way to transfer the property after the owner’s death. But the distinction matters: in most cases, adding someone to title as a co-owner conveys a present ownership interest in the property. That may go considerably further than the owner intended; especially where the actual goal is simply to provide for a future ownership stake.
Once another person is added to the deed and obtains a legal interest in the property, that interest may affect the original owner’s control over the property and may introduce additional homestead, tax, or estate planning considerations.
With that in mind, there are plenty of alternatives that may accomplish the owners’ expressed intent, while retaining their own present control over a property. For example: an enhanced life estate deed—often called a “Lady Bird Deed”—or a properly structured revocable trust may permit property to pass to a family member at death, while preserving substantially greater control during the owner’s lifetime. But neither is automatically the right answer. The appropriate structure depends on the owner’s homestead rights, family circumstances, mortgage, tax considerations, and overall estate plan.
All this to say: owners should consider whether the proposed transfer fits within their broader estate plan before updating their deeds to include family. My colleague Mary Saunders discusses the importance of keeping ownership arrangements and estate plans aligned in The Hidden Risks of an Outdated Florida Estate Plan.
Why Have a Florida Real Estate Attorney Prepare a Deed?
Online forms make it relatively easy for a property owner to attempt to prepare a deed, and a document that satisfies the facial recording requirements may be accepted into the public records. But acceptance for recording does not establish that the conveyance was structured correctly; the conveyance could create an unintended form of ownership; trigger an unexpected tax or reassessment consequence; conflict with a divorce judgment or estate plan; create a title issue; or otherwise affect ownership of that property beyond the grantor’s intent.
These problems may not surface until a later sale, refinance, divorce, dispute, or probate. By then, correcting them can be substantially more complicated. The best time to address the important questions is before signing. A thorough review can help ensure that the recorded document accurately reflects the intended transfer.
If you need assistance preparing or changing a Florida deed, or you are a family law attorney seeking real estate counsel to assist a client with a deed arising from a divorce or other family matter, you may reach me at colten.thomas@henlaw.com to schedule a consultation.