Tenancy by the entirety is a form of joint property ownership under Florida common law, available exclusively to married couples. You can own both real estate and personal property as tenancy by the entirety. Significant advantages exist when you hold property as tenancy by the entirety, both in terms of asset protection from creditors and avoiding probate when one spouse passes away. Contact your Boca Raton asset protection lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., for more information about holding property as tenancy by the entirety, as well as other options for protecting your assets.
Requirements to Hold Property as Tenancy by the Entirety
To legally hold property as a tenancy by the entirety under Florida law, you must meet six specific requirements. You and your spouse must:
- Be married at the time you jointly purchase or obtain the property;
- Hold identical legal interests in the property, i.e., each spouse must own 100% of the property, so neither spouse can transfer the property without the joint consent of the other spouse;
- Maintain joint ownership and control over the property;
- Have joint interests in the property that originated in the same instrument;
- Have joint interests in the property that began at the same time; and
- Own the property so that it automatically transfers to the surviving spouse upon the death of the other spouse.
Tenancy by the Entirety and Protection from Creditors
When you own property as tenancy by the entirety, creditors cannot reach that property to pay debts that only one spouse owes. While the property is vulnerable to creditors holding debts that the spouses jointly owe, it is unavailable to creditors of one spouse or the other. As a result, tenancy by the entirety is a popular method for holding real estate. Nonetheless, you can hold personal property, such as bank accounts, and investment accounts, as tenancy by the entirety.
Holding property as tenancy by the entirety is the easiest way to protect your property from creditors. Since a spouse cannot voluntarily transfer the property on their own, a creditor cannot force the spouse to transfer the property to pay a debt involuntarily. As the spouse has no right to transfer the property without the consent of the other spouse, the creditor cannot seize the property to satisfy the debt.
However, tenancy by the entirety does not protect property from creditors to whom the spouses owe a joint debt. For instance, if spouses jointly take out a personal loan and then fail to make payments on it, the creditor can sue them and obtain a joint judgment against them. To collect on that judgment, the creditor can attach the jointly owned property to satisfy the debt. In contrast, if the creditor has a judgment against only one spouse, the creditor cannot reach the jointly owned property to satisfy the debt.
Tenancy by the Entirety and Probate
Another advantage of property owned as tenancy by the entirety is that it helps avoid the probate process. When one spouse passes away, title to the property automatically transfers to the surviving spouse, eliminating the need for probate. Therefore, if a married couple owns all their assets by tenancy by the entirety, the surviving spouse would automatically have sole ownership of all their assets upon the other spouse’s death.
Frequently Asked Questions (FAQ)
My spouse added my name to his bank account right after we got married. Is the bank account held by tenancy by the entirety?
No. The bank account is not held by tenants by the entireties because the couple was not married when one spouse opened the account. Additionally, adding the second spouse’s name to the account after marriage means that the spouses did not acquire their joint interests in the account simultaneously, which is another requirement for tenancy by the entirety.
My spouse and I lived together in a house that we jointly purchased several years before we got married. Do we own it as tenants by the entireties?
No. You were not married when you purchased the property, so you are not owners of the property as tenants by the entireties. You may own the property as joint tenants with rights of survivorship if you purchased the property jointly, but not as tenants by the entireties.
Is there a statutory law that protects property as tenancy by the entirety for married couples?
No, tenancy by the entirety originates in common law, not a Florida statute or the state constitution. However, Florida Statutes Section 655.79 states that any bank account owned by a husband and wife is presumed to be a tenancy by the entirety account unless there is clear and convincing evidence to the contrary.
We Can Help You Protect Your Most Valuable Assets
A Boca Raton asset protection attorney at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. can assist with the best means for protecting your family and business assets. Contact our office today at (954) 966-2112 or online to schedule a time to discuss your asset protection concerns with our attorneys.