The Beal Bank decision by the Florida Supreme Court in 2001 established a presumption that all bank accounts owned jointly by a husband and wife were presumed to be owned as tenants by entireties and protected from the judgment creditors of either spouse, individually. No protection afforded against joint creditors Since Beal Bank different courts in different jurisdictions have addressed whether the presumption afforded bank accounts in the Beal Bank case extends to other forms of personal property. While these court decisions are not uniform, most courts have held that all jointly owned personal property is presumed to be held as tenants by entireties.
In the 2002 case of Cacciatore v. Fisherman’s Wharf Realty Ltd. Partnership Florida’s Fourth District Court of Appeals held that brokerage accounts titled jointly by husband and wife are presumed to be tenancy by entireties accounts under the rationale of the Beal Bank case. In 2005, The Fifth District Court of Appeals, in Xayavong v. Sunny Gifts, held a rebuttable presumption of tenancy by the entireties to financial accounts, and apparently to other personal property, held by married couples, provided the property in question is imbued with the requisite unities of possession, interest, time, title, survivorship, and marriage.
Two bankruptcy courts have followed the Cacciatore holding. A bankruptcy court in the Middle District of Florida concluded that, “Accordingly, this court finds little basis or reason to distinguish among the various types of personal property in applying the tenancy by the entireties presumption. Where the required unities are present, the court concludes that Beal Bank’s presumption can and should be extended to include all marital personal property, not just financial accounts” In re Daniels 309 B.R. 54. In the case of In re Kossow, 325 B.R. 478, a bankruptcy judge said that, “The Court finds that the policy justifications offered by the Florida Supreme Court in Beal Bank should be applied to all personalty.” This case applied the presumption of protection to household furniture and joint tax refunds.
Only one bankruptcy court reached a contrary conclusion, holding that “the Court declines to extend the holding set forth in Beal Bank, and finds that a presumption of tenancy by the entireties does not extend to all personal property” In re McAnany 294 B.R. 406.
For planning purposes, the weight of authority supports the presumption that any tangible or intangible property owned jointly by husband and wife is protected tenants by entireties property.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida