Most married couples in Florida own their home jointly—but fewer know that how they hold title can mean the difference between an asset being protected or seized by a creditor. Florida recognizes a unique form of joint ownership called tenancy by the entireties, which serves as one of the most powerful and accessible asset protection tools under Florida law.
What is tenancy by the entireties?
Tenancy by the entireties is a form of joint ownership available exclusively to married couples. Unlike joint tenancy or tenancy in common, where each co-owner holds a divisible share, tenancy by the entireties treats the married couple as a single legal unit. Neither spouse owns a separate share, and neither can transfer or encumber the property without the other’s consent.
Why does this ownership form provide creditor protection?
The core advantage is that a creditor of only one spouse cannot reach property held as tenancy by the entireties. Because the property is owned by the “married unit” rather than the individuals, a lawsuit, professional liability claim, or business failure targeting only one spouse generally cannot touch assets titled in this form.
Does this protection apply to assets other than real estate?
Yes. Florida law extends this protection beyond the marital home to personal property, including bank accounts and other financial holdings. However, this designation must be intentional and expressly reflected in the account titling. Simply opening a “joint” bank account does not automatically create tenancy by the entireties; it must be structured specifically for that purpose.
What are the limits of this protection?
Tenancy by the entireties is a powerful shield, but it is not absolute. The protection dissolves or is unavailable in the following scenarios:
- Joint Liabilities: If both spouses are liable for the same debt (such as a joint mortgage or a personal guarantee signed by both), the protection is voided.
- Divorce: Upon divorce, the property automatically converts to tenancy in common, and the creditor protection ceases.
- Death of a Spouse: When one spouse dies, the survivor takes title as sole owner, meaning the asset is no longer protected by the entireties shield.
- Federal Tax Liens: Federal law typically supersedes state protections, allowing the IRS to reach entireties property for a single spouse’s tax debt.
Contact The Law Firm of Kramer Green, P.A. if you are unsure how your property is currently titled or whether your accounts are structured to take advantage of this vital protection.
Frequently Asked Questions (FAQs)
What is the difference between joint tenancy and tenancy by the entireties?
While both forms involve joint ownership, tenancy by the entireties is exclusive to married couples and provides “immunity” from the individual creditors of one spouse. Joint tenancy does not offer this same level of creditor protection.
Does a joint bank account automatically protect me from a creditor?
No. While many joint accounts are intended to be held as tenants by the entireties, the titling must be explicit to ensure full protection. Many standard joint accounts do not meet the legal requirements to trigger this shield.
If my spouse and I are both sued, is our property protected?
No. Tenancy by the entireties only shields assets from the creditors of one spouse. If a creditor holds a judgment against both spouses, or if the debt is a joint obligation, the asset is not protected by this form of ownership.
What happens to the protection when one spouse dies?
The protection ends upon the death of one spouse. The surviving spouse becomes the sole owner of the property, meaning the asset is fully exposed to any future or existing creditor claims against the survivor.