How Tenancy by the Entirety Protects Real Estate in Florida

Real estate was the original application of tenancy by the entirety, and Florida law still provides its strongest protections in this context. A married couple’s home, investment property, vacant land, or commercial real estate held as tenants by the entirety is completely shielded from creditors of either spouse individually. The creditor cannot record a lien against the property, force a sale, or attach the debtor spouse’s interest in any way.

This protection applies to every category of real property, not just the family home. A rental property, a vacation home, undeveloped acreage, and a commercial building all receive the same entireties immunity if the title is properly structured. The distinction matters because many Florida property owners assume that only their homestead receives creditor protection, when in reality the entireties doctrine provides a separate and independent layer of protection that extends to every parcel of real estate a married couple owns together.

Creating Tenancy by the Entirety in a Deed

Florida presumes that any real property conveyed to a married couple is held as tenants by the entirety. The Florida Supreme Court established this presumption in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), and it applies unless the deed expressly creates a different form of ownership. A deed to “John Smith and Jane Smith” creates a tenancy by the entirety if they are married at the time of the conveyance, even without language specifying “husband and wife” or “tenants by the entirety.”

That said, best practice is to include explicit entireties language in every deed. The recommended format names both spouses followed by “husband and wife, as tenants by the entirety.” This eliminates any ambiguity, which is especially important for couples with different last names or when the deed is recorded in a county where the clerk’s office may not independently verify the parties’ marital status.

Adding a Spouse to an Existing Deed

Before Section 689.11 was amended, adding a spouse to real estate required a straw man transaction. The owning spouse would convey the property to a third party, and that third party would immediately reconvey it to both spouses as tenants by the entirety. This workaround was necessary because the common law unities of time and title arguably could not be satisfied when one spouse already owned the property.

Section 689.11 eliminated this requirement for real property. The statute now provides that an estate by the entirety may be created by the spouse holding title conveying to the other spouse by a deed that states the purpose to create the estate. In practice, this means a husband who owns a property in his name alone can execute a single deed conveying the property from himself to himself and his wife as tenants by the entirety, without involving any third party.

Two important details about this process frequently cause problems. First, the deed must convey the entire interest, not a half interest. A deed transferring “an undivided one-half interest” to the other spouse creates a tenancy in common, not a tenancy by the entirety. The deed must transfer the whole property from the owning spouse to both spouses jointly. Second, if the property is homestead, the Florida Constitution does not require both spouses to sign a deed that conveys to the other spouse. Article X, Section 4(c) specifically permits a married person to convey homestead property to his or her spouse, creating an exception to the general rule that both spouses must join in any conveyance of homestead.

The Joint Ownership Types in Florida article explains how Section 689.11 interacts with the broader framework of Florida property ownership and why the distinction between conveying a “half interest” versus the “whole property” is critical.

Homestead and Tenancy by the Entirety: Two Independent Protections

Florida’s homestead exemption under Article X, Section 4 of the Florida Constitution protects a primary residence from forced sale by creditors, with no limit on value and up to half an acre within a municipality or 160 acres outside one. Tenancy by the entirety is a separate, common-law protection based on how the property is titled rather than how it is used.

When both protections apply to the same property, the homestead serves as primary coverage while the entireties ownership provides a backup layer. This redundancy matters because each protection has gaps that the other fills.

Homestead protection can be lost if the property ceases to be the owner’s primary residence, if the owner rents the property for more than a brief period, or if the property exceeds the constitutional size limits. If any of these events occurs, the entireties protection remains in place as long as the couple remains married and the title is correct. Conversely, entireties protection ends upon divorce or the death of one spouse, but the homestead exemption continues for the surviving spouse or the divorced owner who remains in the residence.

The strongest position for a married couple’s primary residence is to hold title as tenants by the entirety with homestead status confirmed by the county property appraiser. This combination ensures that the property is protected against individual creditors (by entireties ownership), against all creditors except mortgage holders, tax authorities, and mechanics’ lien holders (by homestead), and against probate (by the right of survivorship inherent in both).

Investment and Rental Property

Investment real estate does not qualify for homestead protection because the owner does not use it as a primary residence. This makes tenancy by the entirety the sole creditor protection available for rental properties, vacation homes, and commercial real estate that a married couple owns together.

The protection works identically to homestead-eligible property. A creditor with a judgment against only one spouse cannot lien, attach, or force the sale of investment real estate held as tenants by the entirety. Section 689.11 applies to both homestead and non-homestead property, so the same creation and deed requirements apply.

However, investment property carries additional liability exposure that homestead property does not. A tenant who slips and falls on a rental property can sue both spouses as property owners. If the court enters a joint judgment against both spouses, the entireties protection does not apply because the debt is joint rather than individual. For this reason, many asset protection attorneys recommend holding investment real estate inside an LLC rather than in the couple’s personal names. The LLC provides a liability shield between the property and the couple’s other assets, while the LLC membership interest itself can be held as tenants by the entirety for additional protection.

The Owning a Professional LLC With a Non-Licensed Spouse article discusses the operating agreement requirements for holding LLC interests as tenants by the entirety.

Multi-Owner Deeds: Married Couple Plus a Third Party

When a married couple purchases property with a third party, the deed language must be precise to preserve entireties protection. Florida law treats the married couple as a single unit for purposes of tenancy by the entirety, so the couple’s combined interest is treated as one share.

A common scenario involves parents buying an investment property with an adult child. If the deed names all three individuals without specifying ownership shares, the husband and wife hold a one-half interest as tenants by the entirety, and the child holds a one-half interest as a tenant in common. The couple’s half is protected from individual creditors of either spouse. The child’s half is fully exposed to the child’s creditors and is subject to partition.

The deed should state the intended allocation explicitly, such as: “John Smith and Jane Smith, husband and wife, as tenants by the entirety as to an undivided one-half interest, and Robert Smith, as to an undivided one-half interest, all as tenants in common with each other.” This language preserves the entireties character of the couple’s interest while clarifying the co-ownership arrangement with the third party.

Foreclosure and the Loss of Entireties Protection

When real estate held as tenants by the entirety is subject to a mortgage that both spouses signed, the mortgage lender is a joint creditor with the right to foreclose. If the property is sold at a foreclosure auction, any surplus funds remaining after the mortgage and costs are paid present a question: do those surplus funds retain their entireties character?

The Third District Court of Appeal addressed this directly in Grossfeld v. Security National Mortgage Company, 389 So. 3d 726 (Fla. 3d DCA 2024). The court held that once the property was sold at foreclosure, the surplus proceeds lost their tenancy by the entirety protection. The reasoning was straightforward: the foreclosure sale severed the property from the unities required for entireties ownership. As a result, fifty percent of the surplus was available to the husband’s individual creditor.

Grossfeld is significant because it means that a forced sale destroys the protection even though the couple did not voluntarily sever the tenancy. Married couples with mortgaged real estate should understand that if the property goes through foreclosure, any remaining equity loses its entireties shield.

This outcome differs from voluntary sales, where courts have held that the proceeds of a sale by both spouses can retain their entireties character if the proceeds are deposited into a properly titled entireties account. The key distinction is whether the sale was consensual. In Passalino v. Protective Group Securities, Inc., 886 So. 2d 295 (Fla. 4th DCA 2004), the court found that proceeds of entireties property deposited into an attorney’s trust account maintained their entireties status because both spouses participated in the sale.

Unilateral Conveyance by One Spouse

Neither spouse can convey or encumber entireties real estate without the other spouse’s consent. A deed signed by only one spouse is void and does not transfer any interest. This non-severability doctrine is one of the most powerful features of entireties ownership because it prevents a debtor spouse from being coerced by a creditor into transferring property unilaterally.

The Third District Court of Appeal reinforced this principle in Wallace v. Torres-Rodriguez, 341 So. 3d 374 (Fla. 3d DCA 2022), imposing a constructive trust over entireties property that one spouse had improperly conveyed to a third party without the other spouse’s consent. The court’s remedy effectively reversed the unauthorized transfer and restored the entireties character of the property.

For homestead property, this protection is constitutional. Article X, Section 4 of the Florida Constitution requires both spouses to join in any mortgage, lien, or conveyance of homestead, regardless of how the property is titled. For non-homestead property, the protection flows entirely from the entireties ownership itself.

Non-Residents and Florida Real Estate

Florida’s tenancy by the entirety protection applies to real property located in Florida regardless of where the owners live. A married couple domiciled in Georgia, New York, or any other state can hold Florida real estate as tenants by the entirety and receive the same creditor protection as Florida residents.

The Bankruptcy Court for the Middle District of Florida confirmed this principle in In re Cauley, 374 B.R. 311 (Bankr. M.D. Fla. 2007), holding that tenancy by the entirety is a form of property ownership that applies to all property located in Florida regardless of the owners’ domicile. This makes Florida real estate particularly attractive for out-of-state married couples seeking creditor protection, even if their home state does not recognize the entireties doctrine at all. The Which States Recognize Tenancy by the Entirety article identifies the twenty-five states that recognize this ownership form and explains how cross-state ownership is treated.

Deed Mistakes That Destroy Protection

Several common deed errors can inadvertently eliminate entireties protection for real estate. These mistakes are especially dangerous because they often go unnoticed until a creditor attempts to levy against the property, at which point correcting them may be difficult or impossible.

Recording a deed that names the spouses as “tenants in common” or “joint tenants with right of survivorship” destroys the entireties presumption. The Common Mistakes That Destroy Tenancy by the Entirety Protection article catalogs the most frequent errors and explains how to identify and correct them before a creditor challenge arises.

Failing to update deeds after marriage is another common oversight. If one spouse owned property before the marriage and never added the other spouse to the title, the property is individually owned with no entireties protection. The Section 689.11 mechanism discussed above provides a simple path to fix this.

Transferring entireties property into a revocable living trust may sever the tenancy. Florida courts have reached conflicting conclusions on whether property transferred to a trust retains its entireties character. The Tenancy by the Entirety and Trusts article examines the current state of this unsettled area of Florida law and the practical alternatives available for couples who want both trust-based estate planning and entireties creditor protection. The Tenants by the Entirety page provides a comprehensive overview of how entireties ownership fits within a broader asset protection strategy.