Is Florida A Community Property State In Divorce And Death?

If you're married and living in Florida, you may be wondering whether the Sunshine State is a community property state. The answer is no — instead, Florida is a common law state.

Community property and common law states handle the property owned by married couples differently. A common law state like Florida uses equitable distribution laws when dividing assets after a divorce or death. Under these laws, any assets acquired during a marriage belong solely to the spouse who acquired them, instead of being split equally between both spouses.

Although Florida isn't a community property state, it has a law designed to protect spouses from being disinherited after their partner passes away (similar to laws in most other states).

In this article, we'll explain how property laws work in Florida, including what happens to your assets after you die and how the state divides property. Whether you're new to Florida or a long-time resident, this information will help you make informed decisions about your assets and financial future.

Key takeaways from this article:

• Florida is a common law state, not a community property state.
• Being a common law state means the Florida court divides marital property fairly (not necessarily equally) during a divorce.
• If you and your spouse brought property from a community property state, it will usually remain classified as community property and won’t be subject to equitable distribution laws.
• Florida’s elective share law gives surviving spouses the right to claim 30% of their deceased partner’s estate, even if their will says otherwise. This prevents Floridians from disinheriting their spouse.

Want to learn more about making a will, but not sure where to start? Check out our guide to writing your will in Florida.

What is a community property state?

When couples live in a community property state, everything they buy or earn while married belongs to both of them equally, regardless of who acquired it. This means that, by law, each spouse has a 50% interest in marital property including income, houses, cars, and other items acquired while married.

In community property states, each spouse owns 50% of the marital property. When one spouse passes away, their half automatically goes to the surviving spouse. This is similar to how a deceased spouse’s share of jointly held common law property is handled.

Is Florida a community property state?

No, Florida is not a community property state. Instead, Florida is a common law state. This means that, during a divorce, the Florida court tries to divide property fairly (but not necessarily equally) between spouses.

There’s an exception to this: If you move to Florida from a community property state (like Texas or California), Florida lets you keep the 50-50 split for any property you brought with you from your old state, according to the Florida Uniform Disposition of Community Property Rights at Death Act.

But during a divorce, the court will divide anything you buy or earn after moving to Florida based on what they think is fair, not necessarily what is equal.

Understanding equitable distribution in Florida

During a divorce in a common law state like Florida, the court first sorts the couple’s property into two groups:

• Marital or shared property: These are assets and debts acquired during the marriage, regardless of who owns or earned it. This includes:
  • Houses and cars
  • Bank accounts
  • Investments
  • Retirement savings
• Separate or personal property: These are assets that belong to just one spouse, including:
  • Assets (like income) earned before the marriage
  • Gifts received by just one person
  • Inheritances
  • Income generated from separate property – for example, investment income generated from an inheritance

When deciding who gets what, the court considers factors like:

• How long the couple was married
• How much each spouse contributed to the marriage (both at work and at home)
• Each person’s economic situation
• If someone gave up their career or education to help the family
• How much each person helped earn or save money

While equitable distribution applies to divorce proceedings, there’s one special rule: If you moved to Florida from a community property state, you get to keep that 50-50 split for the assets you brought with you, even if one spouse passes away.

Joint property ownership in Florida

Married couples in Florida can own property together in two main ways: tenants in common or tenants by the entirety. How married couples own property affects what happens to it after one spouse dies.

1. Tenants in common: Property owned as tenants in common means each person owns their part of the property separately. If one spouse dies, their part doesn’t automatically go to the surviving spouse. Instead, it can be passed on to someone else, like a child or other family member.
2. Tenants by the entirety: Property owned as tenants by the entirety is more like jointly owned property. If one spouse dies, the other automatically gets full ownership of the property.

What is the elective share right in Florida?

Even though Florida isn’t a community property state, it has special rules to prevent people from cutting their spouses out of their will.

Florida’s elective share statute gives your spouse the right to claim at least 30% of your estate when you pass away, no matter what your will says. This is sometimes called an “election against the will.” This law makes sure that when someone dies, their spouse will have enough money to live on and can't be completely left out of the will.

Let's say you live in Florida and write a will. You can decide who gets most of your property when you die, but your spouse will always have the right to claim 30% first. The rest can go to whoever you choose. Your spouse can also choose not to make the election and simply accept whatever is left to them in your will.

If you're thinking about leaving your spouse out of your will, you should talk to a lawyer first. They can explain your options and help you understand what's allowed under Florida law. A spouse can also waive their right to a spousal election, such as through a prenuptial agreement.

What Florida’s property laws mean for your future

Knowing how Florida divides property helps you make better choices about who gets your assets after you pass away.

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