When a tenant in common dies in Florida, their share of the property does not automatically pass to the surviving co-owner. Instead, it becomes part of their estate and passes according to their will — or Florida’s intestate succession laws if there is no will. That means probate. And it means the surviving co-owner may find themselves sharing ownership with someone they did not choose.

What Is Tenancy in Common and How Does It Work in Florida?

Tenancy in common is a form of property co-ownership in which two or more people each hold a separate, undivided share of the same property. Each owner has the right to use the entire property — not just their percentage of it. But each owner also holds their share independently, which means they can sell it, transfer it, or leave it to whoever they choose.

Florida recognises tenancy in common as the default form of co-ownership when property is purchased by two or more people and the deed does not specifically state otherwise. If a deed is silent on the type of ownership, Florida courts will generally presume tenancy in common rather than joint tenancy.

Co-owners do not have to hold equal shares in a tenancy in common. One owner might hold 60 percent and another 40 percent. The ownership percentages are whatever the parties agreed to and whatever is reflected in the deed. Each owner pays property taxes and can claim deductions proportional to their share.

What Happens to a Tenant in Common’s Share When They Die in Florida?

When one tenant in common dies, their ownership share becomes an asset of their estate. It does not disappear. It does not automatically transfer to the surviving co-owner. It goes wherever the deceased owner directed — or wherever Florida law sends it if they left no direction.

If the deceased owner had a valid will, their share passes to whoever is named as the beneficiary of that asset in the will. That could be a spouse, a child, a sibling, a friend, or a trust. The surviving co-owner has no automatic claim to the share — even if they lived in the property together for decades.

If the deceased owner died without a will — what Florida law calls dying intestate — their share passes according to Florida’s intestate succession statute. The court follows a fixed order of priority: spouse, then children, then other relatives. The surviving co-owner receives nothing unless they happen to be a qualifying heir under Florida law. The result can be deeply unwelcome: a stranger — or a distant relative the surviving co-owner has never met — becomes their new co-owner.

Does a Tenant in Common’s Share Go Through Probate in Florida?

Yes — in most cases, a deceased tenant in common’s share of Florida property must go through probate before ownership can be formally transferred to whoever inherits it. Unlike joint tenancy with right of survivorship, tenancy in common has no automatic transfer mechanism built into the ownership structure.

Probate means the estate must be opened in the circuit court of the county where the deceased lived. A personal representative must be appointed. Creditors must be notified. The share of the property is inventoried as an estate asset. Only after the estate is settled — which typically takes six to twelve months for a straightforward estate — can title in that share be formally transferred.

During that process, the surviving co-owner retains their own share but cannot force a sale or consolidate title without going through the proper legal channels. Our guide to understanding Florida probate explains how the process works and what families can expect at each stage.

If you co-own Florida property and this scenario — a new, unwanted co-owner arriving through probate — concerns you, the solution is not complicated. But it does require the right legal structure. Lumsden Law’s rights of survivorship service helps Florida co-owners restructure their ownership so the property passes exactly as intended — without probate, without delays, without surprises. Call (407) 798-7744 today.

What Is the Difference Between Tenants in Common and Joint Tenancy in Florida?

The most important difference between tenancy in common and joint tenancy with right of survivorship is what happens at death. In a joint tenancy with right of survivorship, when one co-owner dies, their share passes automatically and immediately to the surviving co-owner — no probate, no court, no waiting. The surviving owner files a death certificate and an affidavit of survivorship, and title is updated.

In tenancy in common, no such automatic transfer exists. Each owner’s share is theirs to dispose of however they wish — and the surviving co-owner has no greater claim to it than any other beneficiary.

The other key differences between the two structures in Florida are:

• Ownership shares: Joint tenancy requires equal shares. Tenancy in common allows unequal ownership percentages.
• Transfer during lifetime: A tenant in common can sell or transfer their share without the other co-owner’s consent. In joint tenancy, a unilateral transfer by one owner typically severs the joint tenancy, converting it to tenancy in common.
• Creation: Joint tenancy must be expressly stated in the deed. Florida presumes tenancy in common when the deed is silent.
• Creditor exposure: A tenant in common’s share is reachable by their individual creditors. Joint tenancy with right of survivorship can, in some circumstances, offer additional protection.

Understanding which structure you currently hold — and whether it still serves your intentions — is one of the most important questions a Florida co-owner can ask. Our article on joint ownership risks and legal solutions in Florida explains the full picture.

How Can Florida Co-Owners Protect Themselves and Avoid Probate?

Florida co-owners who want to ensure their shared property passes directly to the right person — without probate, without court involvement, and without unexpected new co-owners — have several well-established options.

The most direct solution for couples or long-term co-owners is to convert the tenancy in common to a joint tenancy with right of survivorship. This is done by executing a new deed that expressly creates a joint tenancy with survivorship rights. When one owner dies, the surviving owner automatically receives full title.

A survivorship deed is the instrument used to create this structure in Florida. Our guide to the survivorship deed in Florida explains how it works, what it must say, and when it is the right choice.

For situations where survivorship rights are not the right fit — for example, where the co-owners are business partners rather than a couple, or where each owner wants their share to go to their own family — placing the property in a revocable living trust may be the better approach. A trust allows each co-owner to control exactly what happens to their share at death, while still avoiding probate.

The right answer depends on the relationship between the co-owners, the nature of the property, and each person’s estate planning goals. A short conversation with an estate planning attorney will make the options clear.

Frequently Asked Questions About Tenants in Common and Death in Florida

What happens when a tenant in common dies in Florida?

When a tenant in common dies in Florida, their ownership share does not pass automatically to the surviving co-owner. It becomes part of their estate and is distributed according to their will, or under Florida’s intestate succession laws if they died without one. The deceased’s share must typically go through Florida probate before title can be transferred to the new owner.

Does tenants in common property go through probate in Florida?

Yes — in most cases, a deceased tenant in common’s share of Florida property must go through probate before it can be transferred. Unlike joint tenancy with right of survivorship, tenancy in common carries no automatic transfer mechanism at death. The share passes through the estate, which means court involvement, creditor notifications, and a waiting period before the new owner receives clear title.

Can a tenant in common leave their share to anyone they choose in Florida?

Yes — a tenant in common in Florida has the right to leave their ownership share to any person or entity they choose through their will. They can also sell or transfer their share during their lifetime without the other co-owner’s consent. This is one of the key differences between tenancy in common and joint tenancy, where transfer rights are more restricted.

What is the difference between tenants in common and joint tenancy in Florida?

The key difference is what happens at death. In a joint tenancy with right of survivorship, a co-owner’s share passes automatically to the surviving co-owner — no probate required. In tenancy in common, each owner’s share passes through their estate according to their will or Florida law. Joint tenancy also requires equal ownership shares; tenancy in common allows unequal ownership percentages.

How can co-owners in Florida avoid probate on shared property?

Florida co-owners can avoid probate on shared property by converting their tenancy in common to a joint tenancy with right of survivorship, executing a survivorship deed, or placing the property in a revocable living trust. Each option has different implications for control, flexibility, and tax treatment. An estate planning attorney can advise which structure best fits the co-owners’ relationship and long-term goals.

If you co-own property in Florida and want to make sure it passes to the right person — without probate, without court delays, and without unexpected new co-owners — this is exactly where I can help. Visit Lumsden Law’s rights of survivorship page or call (407) 798-7744. A short conversation now can prevent a very difficult situation later.