The Short Answer

In Florida, a properly titled tenancy by the entirety (TBE) generally means the surviving spouse becomes the sole owner automatically at death, by operation of law—so the property typically does not pass through probate and is not treated as a divisible “half” interest that can be redirected by someone else.

During a guardianship, however, a court can authorize transactions involving TBE property in limited circumstances, and the non-incapacitated spouse’s rights (including survivorship) are a central issue the court must address.

What Florida Law Says

Tenancy by the entirety is a form of ownership available to married couples. One key feature is survivorship: when one spouse dies, the surviving spouse succeeds to full ownership automatically. Florida law preserves survivorship for estates by the entirety even though survivorship is otherwise limited for joint tenancies unless expressly stated.

The Statute

The primary law governing survivorship for tenancy by the entirety is Fla. Stat. § 689.15.

This statute establishes that survivorship generally does not apply to joint tenants in Florida except for estates by the entirety (and for other survivorship arrangements when expressly created), reinforcing that TBE carries survivorship as a core incident of title.

When guardianship proceedings are involved (for example, one spouse is adjudicated incapacitated and a guardian of the property is appointed), Florida law also addresses how TBE property may be handled. In particular, the guardianship court can authorize a sale, transfer, conveyance, or mortgage of TBE property only under specific conditions, including the requirement that the non-incapacitated spouse join in the transaction (unless both spouses are incapacitated).

See Fla. Stat. § 744.457.

Why You Should Speak with an Attorney

While the statutes provide the general framework, applying them in a real guardianship (especially where family members disagree) is rarely simple. Legal outcomes often depend on:

• Strict Court Approval Requirements: Transactions involving a ward’s property interests often require a court-authorized process, and TBE property has additional protections and constraints. For example, Florida law allows TBE property interests to be sold or mortgaged in guardianship only if statutory conditions are met. See Fla. Stat. § 744.457.
• Burden of Proof and Documentation: Whether the deed and surrounding facts actually created TBE (and not tenancy in common or another form of title) can be contested, and the deed language and chain of title matter.
• Survivorship vs. Court-Ordered Transactions: Even though survivorship is a defining feature of TBE (see Fla. Stat. § 689.15), guardianship litigation can involve requests to sell or refinance property for the ward’s care, disputes over how proceeds should be characterized, and arguments about what is in the ward’s best interests.

If your spouse (or you) is facing guardianship proceedings, the wrong move can unintentionally waive rights, trigger avoidable litigation, or create title problems that surface later when the surviving spouse tries to sell or refinance. A Florida probate/guardianship attorney can evaluate the deed, the guardianship posture, and the court approvals needed to protect the surviving spouse’s property rights.

For more background reading, you may also find these helpful: Does Tenancy by the Entirety in Florida Avoid Probate and Automatically Transfer Property to a Surviving Spouse? and How Can I Update a Property Deed After My Spouse Dies in Florida?.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.