HERBERT N. NAURISON, APPELLANT,
v.
RITA NAURISON, APPELLEE
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In this interlocutory appeal, the court reversed the trial court's denial of the husband's motion to dismiss the wife's partition complaint regarding property held as an estate by the entireties. The court held that property held as an estate by the entireties cannot be partitioned during the marriage, as each spouse owns the whole rather than a divisible share.
Property held as an estate by the entireties cannot be partitioned during the joint lives of the spouses while the marriage exists. An estate by the entireties is characterized by each spouse owning the whole or entirety rather than a divisible share, and no severance or partition is possible by the act of either party.
“The essential characteristic of an estate by the entireties is that each spouse is seized of the whole or the entirety, and not of a share, moiety, or divisible part.”
Defines the nature of an estate by the entireties, explaining why partition is impossible
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Join FLexlaw to unlock all legal intelligenceHerbert and Rita Naurison are husband and wife living apart under a decree for separate maintenance. They own real estate and personal property as an …
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This is an interlocutory appeal from an order denying the appellant’s motion to dismiss the complaint of the appellee.
The parties are husband and wife, living apart under a decree for separate maintenance unconnected with grounds for divorce.
Appellee-wife sued, in a separate suit, in chancery, for partition of certain real estate and personal property owned by them as an estate by the entireties. The pertinent allegations in her complaint are, in effect, as follows: that her husband has failed *624to comply with the terms of the decree of the circuit court requiring him to pay monthly installments of principal and interest in the amount of $152 on the mortgage lien on said property and $90 per week for her support and maintenance; that by reason thereof, he is in arrears in the sum of $10,846.67. She further alleged that her husband abandoned her physically and financially and that she is unable to provide for herself or maintain the property; that the mortgage is in default and is subject to foreclosure suit being brought against the property.
She prayed in her complaint that the property owned by them as an estate by the entireties be partitioned and that 50% of the proceeds, after costs and attorney fees, be paid unto her, and that she be paid, from the remainder, all amounts due her on the final judgment she has against her husband in the sum of $10,846.67, and remaining sums, if any, be held by the court for further order.
The defendant-husband moved to dismiss the complaint on the ground that the complaint, on its face, admits that the parties own the property in question as an estate by the entirety and that right of partition does not lie against property so held.
It is our view that the chancellor should have granted the defendant’s motion to dismiss the complaint, as the allegations therein failed to state a cause of action upon which relief can be granted, because the complaint seeks to partition property owned by the parties as an estate by the entireties.
An estate by the entireties is an estate held by husband and wife together so long as both live, and after the death of either by the survivor, so long as the estate lasts. It is an estate held by husband and wife by virtue of the title acquired by them jointly after marriage. The essential characteristic of an estate by the entireties is that each spouse is seized of the whole or the entirety, and not of a share, moiety, or divisible part. There can be no severance of the estate by the act of either, and no partition of the property during their joint lives. So long as the marriage exists between the parties this property which they hold as tenants by the entireties will not be subject to partition. See Bailey v. Smith, 89 Fla. 303, 103 So. 833; Lamoureux v. Lamoureux, 157 Fla. 300, 25 So.2d 859; Naurison v. Naurison, Fla.App.1959, 108 So.2d 510; Bredin v. Bredin, Fla.1956, 89 So.2d 353, 61 A.L.R.2d 942.
The order appealed from is reversed and the cause is remanded for entry of an order dismissing the complaint, without prejudice to her right to pursue such other remedies as law and equity afford her.
Reversed with directions.
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Goodstein v. Goodstein, 212 So. 2d 321 (Fla. 3d DCA 1968)…sume that a decree of divorce will be entered; and if the trial court finds that the equities are with the plaintiff-wife, a [*322] decree of separate maintenance will not support a partition of the home property. Naurison v. Naurison, Fla.App.1961, 132 So. 2d 623. Reversed and remanded.…
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Eichman v. Paton, 393 So. 2d 655 (Fla. 1st DCA 1981)…arily subject to partition during the continued existence of the marital relationship of husband and wife. Logan Moore Lumber Co. v. Legato, 100 Fla. 1451, 131 So. 381 (1930); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Naurison v. Naurison, 132 So. 2d 623 (Fla. 3rd DCA 1961). Further, an estate by the en-tireties depends on the existence of the marital relationship for its continuance. Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727 (1941). [*657] Appellant recognizes, however, that equity may act to p…
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Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971)…n 1, Florida Constitution 1885; and 19 Fla.Jur. Judgments and Decrees §§ 188 and 208. In an estate by the entirety there is in contemplation of law but one estate and it is held by husband and wife as one person. Naurison v. Nuarison, Fla.App.1961, 132 So. 2d 623. The surviving spouse of an estate by the entirety takes no new estate but the whole estate vests by operation of law in the survivor. 17 Fla.Jur. Husband and Wife § 25. Since the Florida Constitutions of 1885 and 1968 mandate that such judgments a…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bailey v. Thyra Mae Smith, 89 Fla. 303 (Fla. 1925)
- Bredin v. Bredin, 89 So. 2d 353 (Fla. 1956)
- Naurison v. Naurison, 108 So. 2d 510 (Fla. 3d DCA 1959)
- Amedee J. Lamoureux v. Lamoureux, 157 Fla. 300 (Fla. 1946)