United States: What Is The Effect Of Deeding Non-Marital Property Prior To A Florida Divorce Proceeding?

In a Florida divorce, does property that is otherwise non-marital become marital property merely because one spouse added the other spouse to a deed? Florida's First District Court of Appeal addressed this issue recently in McKee v. Mick, 120 So. 3d 162 (Fla. 1st DCA 2013). In McKee, the trial court classified a wife's burial plot as non-marital property. On appeal, the First District reversed based on the evidence presented at trial.

The wife in McKee received two burial plots during the marriage as gifts from a family member. After receiving the burial plots, the wife added the husband to the deed on the property. During the divorce proceeding, the wife claimed the burial plots were non-marital property. However, at trial the wife testified that she added her husband's name to the deed "believing the parties' marriage would last." Id. at 163. On appeal, the First District found that the trial court incorrectly deemed the burial plot as non-marital property. The appellate court noted that for purposes of equitable distribution, marital assets include "[i]nterspousal gifts during the marriage." Id., citing Fla. Stat. 61.075(6)(a)(1)(c). According to the appellate court, the wife's testimony that she added the husband's name to the deed because she thought the marriage would last established the property as a gift. Id.

In addition to relying on the testimony, the First District in McKee cited to Fla. Stat. 61.075(6)(a)(2) which provides that "[a]ll real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage shall be presumed to be a marital asset;" see also, Beal Bank, SSB v. Almand & Assoc., 780 So. 2d 45, 54 (Fla. 2001)(holding that "[i]n the case of ownership of real property by husband and wife, the ownership in the name of both spouses vests title in them as tenants by entireties.") This presumption, however, can be overcome. As the McKee court recognized, the party claiming that property held by husband and wife is non-marital carries the burden of proof.

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