Do Non-Residents Enjoy Tenancy By Entireties Protections?

A caller from Kentucky asked about asset protection of several rental properties located in Florida and owned jointly with his wife. The caller was facing a potential civil judgment against him individually, but his wife was not named in the lawsuit. Property owned by husband and wife in Florida is presumed to be owned as “tenants by the entireties“, and such property is immune from judgments against either spouse individually. This caller was a resident of Kentucky, and that state does not recognize tenants by the entireties ownership and not other exemption is given to marital property. The question was whether the jointly owned Florida properties are protected from a Kentucky judgment against and individual Kentucky resident who owns Florida real property jointly with his spouse.

My initial opinion given without the benefit of research is that the properties are protected from the husband’s creditors. The law applicable to real property is the law of the state where the property is located, in this case, Florida. Contrarily, a Florida resident who jointly owned property in Kentucky could not protect the property as tenants by entireties assets if Kentucky does not recognize the concept.

Also, tenants by entireties is not an exemption granted by Florida Statutes and is not specific to Florida residents. Tenancy by the entireties is a common law protection which means it is the product of court decisions interpreting common law concepts. The most recent and most comprehensive court decision is the Supreme Court of Florida decision in Beal Bank v. Almand in March, 2001. The Beal Bank decision granted tenancy by entireties protection to Florida property rather than to Florida residents.

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