Joint proprietorship of real estate and divorce, what happens when one passes away?

Foreign Property, Divorce, and Florida Probate Proceedings: Do not Assume Anything

          In Florida, if for some reason your marriage ends, there are some instances where your ex-spouse’s rights to inheritance under your estate plan are automatically severed. In Florida, the ex-spouse is automatically cut out of any estate planning documents, reducing the need to amend a will in the event of a divorce. Also, if a couple owns a house in Florida as tenants by the entireties, that joint interest is severed upon divorce and they become tenants in common. The divorce changes the property interest, and allows that each ex-spouse inherits their half, but the other half does not automatically transfer to the surviving ex-spouse. However, all of these automatic changes happen when the property is located in Florida. What changes if the property is located in a foreign country? A case out of the Second District Court of Appeals addressed the issue in Ebanks v. Ebanks.

Arthur and Diane Ebanks were divorced in Florida in 2008. Arthur executed his will on the day he filed for divorce in 2006. The Ebanks jointly owned three water front properties in the Cayman Islands. In his will, Arthur provided that upon his death, the property jointly held will pass to the survivor. The property in the Cayman Islands was owned under “joint proprietorship,” which is a form of holding title in the Cayman Islands which is similar to joint tenancy with right of survivor ship. Under “joint proprietorship” the interest of the deceased proprietor would transfer to the surviving proprietor. There is no law in the Cayman Islands dissolving a joint proprietorship in the event of divorce.

Therefore, under Arthur’s will and Cayman Island’s law, the three properties became Diane’s sole property upon the death of Arthur. The Second District found that neither the judgment from the trial court nor the divorce required alteration of the type of ownership in the properties, nor was there evidence that either of them contemplated doing so. The court stated that marital settlement did not address the Cayman Island properties or what would happen if one predeceased the other. While the martial settlement did not address the properties, Arthur’s will did. Arthur executed his will during the divorce proceedings, but took no steps to alter title to the Cayman Island properties.

So what happened to the properties? Diane got all of the properties as the sole owner. The lesson to be learned is that, in the event of a divorce, if foreign property is involved, be sure to consult with foreign counsel and check what form of ownership is on the property and alter it if necessary. This article is meant to provide an example of a case involving foreign property and divorce. Individuals who have questions about foreign property and divorce should contact an attorney. Please do not hesitate to contact our attorneys Bart Chepenik, 305-613-3548 cell or Brad Trushin, 305-981-8889 office, Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs. We have the best lawyers, educated at the best law schools, producing the best estate planning documents.

 

Super Lawyers
Florida Legal Elite
Florida Legal Elite
AV Preeminent