Tenancy by the Entirety in Florida

Tenancy by the entirety is a form of joint property ownership available exclusively to married couples in Florida. Under Florida common law, a creditor holding a judgment against only one spouse cannot force the sale of, place a lien on, or otherwise reach any property the couple owns as tenants by the entirety. The protection applies to real estate, bank accounts, brokerage accounts, vehicles, business interests, and virtually every other type of asset that can be jointly titled.

Florida provides the strongest tenancy by the entirety protection in the country. The state combines complete creditor immunity against individual judgments with the broadest property coverage of any jurisdiction. While twenty-five states recognize tenancy by the entirety, many limit it to real estate only. Florida extends it to both real and personal property, making it a cornerstone of Florida asset protection planning.

How Tenancy by the Entirety Protects Assets

Neither spouse owns a separate, divisible interest in entireties property under Florida law. Both spouses own the entire asset as a unified entity. Because a spouse who owes a debt cannot voluntarily transfer the property without the other spouse’s consent, a creditor cannot compel an involuntary transfer either.

Entireties protection follows a simple rule: if only one spouse owes the debt, entireties property is fully protected. A creditor with a judgment against the husband alone cannot garnish the couple’s joint bank account, levy against their jointly titled real estate, or seize their jointly owned investments.

The protection ends when both spouses owe the same debt. A joint creditor holding a single judgment against both spouses can execute against the couple’s entireties property. The distinction between individual and joint debts is the most important factor in tenancy by the entirety planning. Unnecessary joint obligations—such as both spouses co-signing a business lease or personally guaranteeing the same loan—are among the common mistakes that destroy entireties protection.

The Six Unities of Tenancy by the Entirety

Florida law requires six elements for entireties ownership to exist. The absence of any one element prevents the tenancy from forming, regardless of what the account title or deed language says.

Unity of possession means both spouses must have joint ownership and control over the property. Unity of interest requires that each spouse hold an identical interest. Unity of title means both interests must originate in the same document. Unity of time requires that both spouses acquire their interests simultaneously.

Survivorship means the property automatically passes to the surviving spouse at death without probate. Unity of marriage requires the owners to be legally married at the time they take title.

Failure to satisfy any unity creates problems that documentation alone cannot fix. A spouse who adds their partner to an existing bank account after marriage violates the unity of time because the interests were not acquired simultaneously. A couple who buys property together before marriage and then marries cannot retroactively convert their joint tenancy into tenancy by the entirety because they were not married at the time of acquisition.

Establishing entireties ownership correctly from the outset requires attention to how accounts are opened and titled. Tenancy by the entirety differs from tenancy in common and joint tenancy with right of survivorship in its creditor protection, survivorship rights, and restrictions on unilateral transfer.

The Beal Bank Decision and the Presumption of Entireties Ownership

The Florida Supreme Court’s 2001 decision in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45, is the foundational case for tenancy by the entirety law in Florida. The court established that any real or personal property jointly owned by a married couple is presumed to be held as tenants by the entirety unless the couple has expressly indicated otherwise.

For bank accounts specifically, the court held that if the signature card does not expressly disclaim entireties ownership, a rebuttable presumption arises as long as the account was established in accordance with the six unities. The Florida Legislature subsequently codified this presumption in § 655.79, providing that any deposit account held by husband and wife is considered a tenancy by the entirety unless otherwise specified in writing.

The presumption can be overcome only by proof of fraud, undue influence, or clear and convincing evidence of a contrary intent. Whether a particular asset actually qualifies depends on the documentation, the account agreement language, and the specific circumstances of acquisition. Not all banks offer tenancy by the entirety accounts that properly support the designation, and brokerage and investment accounts present additional complexities because FINRA rules do not always accommodate Florida’s entireties requirements.

Property Types That Qualify for Entireties Protection

Tenancy by the entirety in Florida covers real estate, bank accounts, brokerage accounts, vehicles, and business interests, though the requirements and presumptions differ by asset type.

Real Estate

Real estate carries the strongest presumption of entireties ownership. Under Beal Bank, a deed to a married couple is presumed to create tenancy by the entirety unless it states otherwise. Section 689.11 eliminated the old straw man requirement, allowing one spouse to convey real property directly to both spouses as tenants by the entirety. Deed language, homestead interaction, and the consequences when entireties real estate is sold or foreclosed all affect whether the protection holds.

Bank Accounts

Bank accounts are protected under the Beal Bank presumption and § 655.79, but only if the account was properly established. Banks that do not offer entireties designation or whose account agreements disclaim entireties ownership can undermine the protection. Married couples should confirm that their bank’s customer agreement does not contain language disclaiming entireties status.

Brokerage and Investment Accounts

Brokerage and investment accounts present unique challenges because FINRA rules and brokerage firm policies do not always accommodate Florida’s entireties requirements. Some major brokerages explicitly disclaim entireties ownership in their account agreements regardless of how the account is titled.

Automobiles

Automobiles can qualify but do not benefit from the same presumption as other property. Section 319.22(2)(a) requires that vehicle titles use the word “and” rather than “or” to support entireties ownership. The default joint designation on Florida titles is typically “or,” which does not create a tenancy by the entirety. Married couples should generally title vehicles in only one spouse’s name rather than jointly, a counterintuitive point explained in the automobiles and personal property discussion.

LLC Membership Interests

LLC membership interests can be owned as tenants by the entirety if the operating agreement expressly provides for it. Both spouses must have equal management rights and equal economic interests, and the agreement must include survivorship provisions. Professional LLC spouse ownership requires specific operating agreement language and careful tax reporting to maintain entireties protection for business interests.

Limitations on Tenancy by the Entirety Protection

Joint debts, federal tax liens, fraudulent transfers, and divorce can each override or eliminate tenancy by the entirety protection.

Joint Debts

Joint debts are the primary exception. When both spouses are liable on a single obligation, the creditor can reach entireties property to satisfy the joint debt. Separate judgments against each spouse based on separate causes of action do not create a joint debt. Only a single judgment against both spouses jointly permits execution against entireties assets.

Federal Tax Liens

Federal tax liens override entireties protection entirely. The Supreme Court of the United States held in United States v. Craft, 535 U.S. 274 (2002), that federal tax lien law independently defines what constitutes property for collection purposes, and state-law protections do not apply. The IRS can levy against a spouse’s interest in any entireties asset, and the federal exception to entireties protection extends to both real and personal property.

Fraudulent Transfers

A spouse who converts individually owned assets into entireties property with the intent to hinder, delay, or defraud creditors risks having the transfer reversed under Chapter 726 of the Florida Statutes. A creditor challenging the transfer must bring an adversary proceeding and join the non-debtor spouse, per the Eleventh Circuit’s holding in Havoco of America, Ltd. v. Hill, 197 F.3d 1135 (11th Cir. 1999). Courts analyze whether the non-debtor spouse participated in or benefited from the fraudulent transfer, which determines what protections that spouse retains.

Divorce

Divorce terminates the tenancy immediately. Section 689.15 provides that dissolution of marriage automatically converts tenancy by the entirety into tenancy in common, exposing each spouse’s separate 50% interest to their individual creditors. The creditor exposure window opens as soon as dissolution proceedings begin, and marital settlement agreements should be structured to preserve asset protection through this transition.

Community Property vs. Tenancy by the Entirety

Florida is not a community property state. Florida uses equitable distribution, meaning assets acquired during marriage are divided fairly in a divorce but are not automatically co-owned as a matter of law. Only nine states follow community property rules: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

The distinction matters for creditor rights. In a community property state, a creditor of one spouse can often reach that spouse’s half-interest in all community assets, even assets titled solely in the non-debtor spouse’s name. Community property does not provide the same unified-ownership barrier that tenancy by the entirety creates.

Florida’s equitable distribution system treats individually titled assets as the separate property of the titleholder. Jointly titled assets can qualify for tenancy by the entirety protection if the six unities are satisfied, creating full immunity from individual creditors rather than the partial exposure that community property produces.

Couples relocating from a community property state to Florida should retitle jointly held assets to qualify for entireties protection under Florida law rather than carrying forward the former state’s property classification.

Tenancy by the Entirety and Trusts

Transferring entireties property into a trust generally destroys the tenancy. A trust is a separate legal entity, and trust ownership is fundamentally inconsistent with the unity of marriage required for entireties status. If a married couple deeds their home from “Husband and Wife, as tenants by the entirety” to “Trustee of the Husband and Wife Living Trust,” the entireties protection may be lost.

Florida courts have not resolved this tension as clearly as courts in some other states, and no Florida statute expressly authorizes entireties ownership within a trust. Structuring alternatives exist that can preserve some or all of the protection, but coordinating entireties ownership with trust planning requires careful alignment between the trust document and the asset titling.

Tenancy by the Entirety in Bankruptcy

Tenancy by the entirety is one of the most powerful exemptions available in bankruptcy. Section 522(b)(3)(B) of the Bankruptcy Code preserves the exemption for people in states like Florida that have opted out of the federal exemption scheme. When one spouse files individually for Chapter 7 or Chapter 13 bankruptcy, the trustee cannot reach entireties property to pay the filing spouse’s individual creditors.

The exemption applies to the full value of the property without any dollar cap, unlike many other bankruptcy exemptions. It also does not require the 730-day domicile period that applies to Florida’s homestead and other statutory exemptions. The joint debt exception, homestead interaction, and strategic considerations for individual versus joint filings all affect how entireties protection operates in bankruptcy.

Practical Considerations for Entireties Planning

Married couples in Florida should review the titling of their assets periodically to ensure that all jointly owned property meets the six unities and that account agreements do not inadvertently disclaim entireties ownership.

The protection is most effective when liability exposure is concentrated in one spouse and the couple holds their most valuable assets in joint names. Professional couples where both spouses face potential liability may find tenancy by the entirety less effective because joint debts and dual exposure reduce its usefulness.

Tenancy by the entirety is not a substitute for adequate liability insurance. It protects assets after a judgment but does nothing to prevent the judgment itself or cover the costs of litigation. The most effective asset protection strategy combines appropriate insurance coverage with careful ownership structuring, including entireties titling alongside other tools such as LLCs, homestead protection, and head of household wage exemptions.