Common Mistakes When Opening Tenants By Entireties Bank Accounts
Tenants by entireties bank accounts can be tricky. Florida law provides that a joint marital bank account is presumed to be an exempt tenancy by entireties account unless there is contrary evidence. The issue is what constitutes contrary evidence sufficient to overcome the legal presumption and make the bank account a non-exempt joint account with survivorship.
There are two principal ways a couple can jeopardize tenancy by the entireties ownership of a joint financial account:
- Disclaiming tenants by entireties ownership on the account signature card,
- Entering into a contract that expressly states that the account is not owned by the entireties.
Disclaiming Tenants by Entireties
The first way to jeopardize tenancy by entireties ownership of a bank account is for the couple to disclaim entireties ownership on a signature card.
If tenancy by entireties is present as an option on the signature card, the account holders must choose it. If they choose some other form of ownership instead of the entireties option that is offered, then the couple has affirmatively refused the entireties option and has rebutted the presumption of entireties ownership.
Contracts that Prohibit Entireties Ownership
Another way that a creditor could overcome the entireties presumption is to show a contract between the debtors and the bank that expressly states that the joint account is not an entireties account.
The contract comes in the form of the written checking account agreement, full of legal fine print, that bank customers sign when they open an account. If the married couple enters into a contract with the bank that states that their joint account is not an entireties account, then the couple has, arguably, affirmatively chosen not to have an entireties account. If your bank does not offer accounts titled tenants by entireties, then you should carefully read the customer agreement.
For example, one of my recent clients has a joint marital account at Fifth Third Bank. The bank’s customer agreement has a section titled “Joint Ownership.” The agreement says that “the account shall be deemed as owned as joint tenants with right of survivorship and not as tenancy the entireties.”
I recall another client who, several years ago, told me that his deposit agreement at USAA has similar language. Contrast these agreements with Chase Bank, whose deposit agreement states that joint marital accounts in Florida are tenants by entireties accounts pursuant to Florida law. The Chase agreement confirms the presumption of entireties ownership, whereas the Fifth Third and USAA agreements support a creditor argument that the debtors did not intend to open an entireties account.
When it comes to entireties bank accounts, the legal fine print in customer agreements is important. If a bank does not offer accounts with entireties on the title, a person concerned with asset protection should read the ownership provisions in the agreement and avoid banks that ask customers to contractually agree that their account is not tenants by entireties.
About the Author
Jon Alper is an expert in asset protection planning for individuals and small businesses.
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