Common Mistakes When Opening Tenancy by the Entirety Accounts

A tenancy by the entirety account is one of the simplest asset protection tools available to married couples in Florida. It costs nothing to establish, requires no trust document or special legal structure, and provides complete protection from the creditors of either individual spouse. The protection fails, however, when the account is not properly created.

Many married couples believe their joint bank or brokerage account is protected when it is not. The mistakes that destroy TBE protection typically happen at the moment the account is opened and often cannot be undone without closing the account and starting over. Financial institutions are not required to explain the asset protection consequences of their account applications, and courts have consistently held that the responsibility falls entirely on the depositor.

This article covers the most common errors that defeat TBE ownership in Florida, the legal framework that governs each, and what married couples should do to avoid them.

Selecting JTWROS When TBE Is an Option

The most frequent and most consequential mistake occurs when a married couple opens a joint account at a financial institution that lists both “joint tenants with right of survivorship” and “tenants by the entirety” as separate options on the application form. If the couple checks the JTWROS box instead of the TBE box, they have disclaimed entireties ownership.

The Florida Supreme Court established this rule in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). The Court identified two ways that TBE ownership can be expressly disclaimed. The first is a signed statement that TBE was not intended, coupled with a designation of another ownership form. The second occurs when the financial institution offers TBE on the signature card alongside other options and the depositors select something other than TBE.

The second scenario is the more common trap. Brokerage firms like Charles Schwab present six different ownership options on their account applications. TBE is one checkbox, JTWROS is a separate checkbox, and the form includes no explanation of the legal consequences of each choice. A married couple that checks JTWROS has made an affirmative legal decision to reject TBE protection, even if they did not understand what they were doing.

In Wexler v. Rich (Fla. 4th DCA 2012), the appellate court addressed a case where a bank employee selected “Multiple-Party Account with Right of Survivorship” for a married couple instead of the “Multiple-Party Account — Tenancy by the Entireties” option that was also available on the form. The bank employee did not discuss the TBE option with the couple. The court held that the couple had disclaimed TBE because the form offered both options and a non-TBE selection was made. The court observed that the bank had no duty to explain or discuss account ownership options, noting that most Florida attorneys could not describe the differences between these account types.

The rule is clear. When TBE is available on the form, select it. Do not assume that any joint account between spouses is automatically TBE.

Ignoring the Customer Agreement

The signature card is not the only document that matters. The bank’s written customer agreement, often dozens of pages of fine print signed at account opening, can independently disclaim TBE ownership even when the signature card is silent on the issue.

The Fourth District Court of Appeal addressed this directly in Storey Mountain, LLC v. George, 2023 WL 1999960 (Fla. 4th DCA 2023). The account at issue was at PNC Bank. The signature card made no reference to the type of joint account being opened. However, the PNC customer agreement contained the following language: “If an Account is in the names of spouses, you understand, intend and agree that such an Account is NOT owned as tenants by the entireties unless otherwise expressly designated on the Account records.”

The court held that the account was not a TBE account because the customer agreement constituted a written disclaimer of entireties ownership. This meant that even though the signature card did not reject TBE, the separate contract the couple signed when they opened the account did.

The Storey Mountain decision expanded the scope of what counts as a TBE disclaimer beyond the signature card itself. Prior to this case, many attorneys interpreted Florida Statutes Section 655.79 to mean that only the signature card mattered. After Storey Mountain, the entire deposit agreement is relevant. A bank can effectively block TBE ownership through its standard contract terms, without ever presenting the couple with a choice on the signature card.

Several major banks include TBE disclaimers in their customer agreements. Truist’s deposit agreement states that joint accounts are held as JTWROS “and not as tenants by the entirety.” Fifth Third Bank’s agreement says joint accounts “shall be deemed as owned as joint tenants with right of survivorship and not as tenancy by the entireties.” PNC reserves the right to refuse TBE designation entirely. The Which Banks Offer Tenancy by the Entirety? article provides a comprehensive comparison of bank policies.

Adding a Spouse to an Existing Account

For decades, one of the most dangerous mistakes in Florida TBE law involved adding a spouse to an account that was originally opened by one spouse alone. Under common law, TBE required the six unities of possession, interest, title, time, marriage, and survivorship. When one spouse opened an account individually and later added the other spouse, the unities of time and title were not satisfied because the two interests did not commence simultaneously or originate in the same instrument.

The Fifth District Court of Appeal applied this rule in the Beal Bank litigation itself. A Merrill Lynch brokerage account originally opened by one spouse and later amended to include the other spouse was held subject to garnishment because the account lacked the unities of time and title. The Florida Supreme Court’s Beal Bank opinion expressly declined to address the Merrill Lynch account for this reason.

The Florida Supreme Court changed this rule in December 2025. In Loumpos v. Bank One, the Court held that a joint spousal account can qualify as TBE even if the account was originally opened by only one spouse, as long as the couple later executed signature cards designating the account as TBE. The Court ruled that Florida Statutes Section 655.79 controls over the common law unities of time and title for bank accounts. Under the statute, any deposit or account in the name of two persons who are husband and wife is considered TBE “unless otherwise specified in writing.”

Loumpos resolved a conflict between the Second and Fourth District Courts of Appeal and significantly simplified TBE creation for bank accounts. Married couples in Florida can now add a spouse to an existing bank account and designate it as TBE without the unity-of-time problem that previously defeated such arrangements.

There are two important limitations. First, Loumpos applies to bank accounts governed by Section 655.79. Whether the same reasoning extends to brokerage accounts, stock certificates, or other personal property not covered by the statute remains an open question. For brokerage accounts, the safer approach is still to open a new joint account with both spouses from the beginning.

Second, the Loumpos decision requires that the couple’s intent to create TBE be clear. A couple that adds a spouse to an existing account and designates it as TBE on the new signature card satisfies the statute. A couple that adds a spouse and selects JTWROS does not. The statutory presumption applies only when TBE is not disclaimed in writing.

Banks Unilaterally Changing Account Titles

A less common but documented problem involves banks changing the account designation without the depositor’s knowledge or consent. In one reported instance, Bank of America unilaterally changed a joint account from “tenants by entireties” to “tenants in common.” The bank’s standard customer agreement reserved the right to modify the terms of the account contract without notice to or consent from the account holder.

Tenants in common provides no asset protection whatsoever. Each spouse’s share is individually owned and individually reachable by that spouse’s creditors. The change from TBE to tenants in common eliminated the account’s creditor protection entirely.

The legal analysis in this situation turns on intent. Because the couple originally opened the account as TBE, they can demonstrate their intent to hold the account as an entireties account. If neither spouse signed anything accepting or initiating the title change, the original TBE designation should control. A bank’s unilateral contract modification does not necessarily override the depositors’ original intent to create a TBE account.

The practical problem is different. A judgment creditor that examines the account will see a tenants-in-common designation and may serve a writ of garnishment. The debtor spouse would then have to litigate the account’s history in court to prove that the account was originally TBE and that the change was unauthorized. This is expensive and uncertain. The better solution is to monitor account statements periodically and, if a change is discovered, move the funds to a new TBE account at a different institution immediately.

Assuming All Joint Accounts Are TBE

Many married couples assume that any account titled jointly with their spouse is automatically protected as TBE. This assumption is understandable given Florida’s strong statutory presumption. But the presumption is exactly that: a presumption that can be rebutted by contrary evidence.

Florida Statutes Section 655.79 provides that joint accounts held by spouses are considered TBE “unless otherwise specified in writing.” The phrase “otherwise specified in writing” is where the protection breaks down. It includes the signature card, the customer agreement, and any other written document associated with the account that disclaims TBE.

The presumption also does not apply equally in all circumstances. If the bank’s application offers a specific TBE option and the couple selects a different ownership form, no presumption of TBE arises. The couple has affirmatively chosen a non-TBE ownership structure. If the bank’s application does not offer TBE at all and does not disclaim it in the customer agreement, the presumption is strongest because the couple had no opportunity to select or reject TBE.

The safest approach is never to rely on the presumption when it can be avoided. If the institution offers TBE as an option, select it. If the institution does not offer TBE, read the customer agreement to confirm it does not disclaim TBE ownership. If the agreement does disclaim it, use a different institution.

Failing to Review Accounts After Life Changes

TBE protection can be lost through events that occur after the account is opened.

Divorce immediately converts TBE property into tenancy in common. The moment a divorce becomes final, each spouse’s share of the formerly TBE account becomes individually reachable by that spouse’s creditors. A debtor spouse anticipating divorce should consider alternative asset protection strategies before the TBE ownership terminates. The TBE and Divorce article covers this in detail.

Death of one spouse also terminates TBE. The surviving spouse inherits the account through the right of survivorship, but the account is no longer TBE because TBE requires two living spouses. The surviving spouse’s creditors can now reach the account.

Remarriage after the death of a spouse does not automatically create TBE in existing accounts. The surviving spouse who remarries and wants TBE protection for accounts inherited from the first marriage would need to open new accounts jointly with the new spouse, funded by the inherited assets. The new accounts must satisfy the requirements for TBE creation.

Bank mergers and acquisitions can also affect TBE accounts. When one bank acquires another, the surviving entity’s customer agreement may differ from the original bank’s agreement. If the acquiring bank’s agreement disclaims TBE, the account may lose its TBE designation going forward. Couples should review their account terms after any bank merger notification and confirm that TBE ownership has been preserved.

Summary of Mistakes and Remedies

Mistake	Legal Consequence	Remedy
Selecting JTWROS when TBE was available	TBE disclaimed under Beal Bank; no creditor protection	Open new TBE account and transfer funds; some brokerages allow conversion
Not reading the customer agreement	Agreement may disclaim TBE even if signature card is silent; Storey Mountain	Review agreement before opening; switch banks if TBE is disclaimed
Adding spouse to existing account	Historically void for lack of unity of time/title; Loumpos (2025) now allows for bank accounts	For bank accounts, re-designate as TBE on new signature card; for brokerage accounts, open new joint account
Bank unilaterally changed title	May lose TBE designation on paper; original intent may still control	Move funds to new TBE account at a different bank
Assuming joint means TBE	Presumption may not apply if alternative was available	Confirm TBE designation on account documents
Divorce or death of spouse	TBE terminates by operation of law	Plan alternative protection before the triggering event

For a broader overview of how tenancy by the entirety works in Florida, see the Tenancy by the Entirety in Florida guide. Married couples seeking to audit their existing accounts should review the Which Banks Offer Tenancy by the Entirety? and Brokerage Accounts articles for institution-specific policies. Couples who want to understand how TBE compares to JTWROS, tenancy in common, and community property should see the Joint Ownership Types article.