Attorney General Bob Butterworth has issued an opinion to the effect that
the Clerks of the Circuit Court do not have authority to accept death certificate
for recording and directing Clerks not to accept death certificates.
In addition to citing that Clerks do not have authority to record death certificates,
Mr. Butterworth also indicates that death certificates should not be recorded
because they contain confidential information, specifically the cause of death
which might reveal something like suicide or AIDS or some other matter which
could be deemed to be private.
Obviously, this creates a problem for title insurers.
I am told that in one county, which I believe to be Okaloosa, a judge in the
Circuit Court has directed the Clerk to record death certificates because it
is necessary to establish the ownership of land titles.
I understand some Clerks are simply refusing to record death certificates
in accordance with Mr. Butterworth's directive. I understand that others,
more specifically Dade, are allowing the death certificate to be recorded as
an exhibit to an affidavit so that they are not recording the death certificate
directly but rather recording an affidavit and yet the death certificate information
Some Clerks, possibly all Clerks, specifically Palm Beach County, will accept
for recording death certificates where the confidential information has been
struck or deleted by the Bureau of Vital Statistics prior to their certification
being placed on the death certificate. This is sometimes referred to as a "short
form" death certificate.
The best way to address this problem is to obtain such a death certificate
and record it. We understand these death certificates are issued from local
offices of the Bureau of Vital Statistics, not just Jacksonville, for a cost
of $8.00 each. It will probably take a week to obtain.
In the alternative, when time does not permit getting the short form death
certificate, and until this matter is more definitively settled, we ask that
you use the Affidavit of Surviving Spouse 1 to be completed by the surviving
spouse. The affidavit is to the effect that we have a certified copy of the
death certificate, that it has been deposited in our file, that we have examined
it, that it reveals who passed away, that an original copy is maintained in
the closing file. It also serves as an affidavit of continuous marriage. You
should then annex to the affidavit the certified copy of the death certificate
(long form) with the cause of death and any other apparently confidential information
blanked out or covered over with tape.
However, if the Clerk in your particular county will not accept this, then
we will use a modified form of the same affidavit but with the clause dealing
with the attached copy being deleted. (Please use Affidavit of Surviving Spouse
2 in these situations.)