Title Tale: Married Until the End?
Title Tale: Married Until the End?
Why Continuous Marriage Affidavit Matters in Florida
Written by: Mylene Marcelo, Title Officer and Title Manager
In Florida, property held by a married couple is typically presumed to be held as tenancy by the entirety—a form of ownership that provides survivorship rights. When one spouse passes away, their interest in the property automatically transfers to the surviving spouse, without the need for probate. But what happens when the paperwork doesn’t tell the full story?
Recently, during a routine title review, we encountered a case that illustrates exactly why the continuous marriage affidavit, and a proper death certificate are critical.
The title reflected a married couple holding title together. Upon the passing of one spouse, we expected the standard documentation: a death certificate and a continuous marriage affidavit from the surviving spouse.
But there was a twist—
The death certificate listed a different surviving spouse than the one on title.
Normally, such a discrepancy might suggest a divorce followed by remarriage, which would mean tenancy by the entirety was severed before death. That change would require further documentation to determine current ownership.
However, the surviving spouse on title denied any divorce ever took place.
We requested an explanation—and the borrower shared a surprising update:
The deceased spouse had unlawfully remarried while still legally married to the titleholder. That second marriage was ultimately annulled by court order, having been declared legally invalid due to the lack of a divorce.
This revelation created a critical issue:
The death certificate listed the second (invalid) spouse as the surviving spouse, not the rightful surviving spouse per the title.
To clear title and ensure that tenancy by the entirety—and therefore survivorship—was preserved, we required:
- A copy of the annulment order, confirming that the second marriage was void.
- A court order correcting the death certificate to reflect the legal surviving spouse.
- A continuous marriage affidavit to confirm that the original marital relationship was never legally severed.
Only after receiving this documentation could we proceed with removing the deceased spouse’s interest.
Key Takeaways:
- Do not rely solely on a death certificate—cross-check the named surviving spouse with title.
- A continuous marriage affidavit is more than just a formality; it confirms uninterrupted marital status and validates survivorship rights.
- When red flags appear, investigate thoroughly and request supporting legal documents (annulments, court orders, etc.).
- An incorrect death certificate can impact title—amendments may be necessary before proceeding.
Situations like this are uncommon but not unheard of. They’re a reminder that even in states like Florida, where tenancy by the entirety is presumed, clear documentation and verification are essential for a clean title.
