Tenancy By Entireties Protection Where Non-Debtor Spouse Is Not U.S. Citizen

A reader posed an interesting question about tenants by entireties protection. The reader, a man, is a U.S. citizen married to a non-citizen wife. The reader stated that he currently resided in a foreign country with his new wife. Three years ago he lived in Florida. He intends to return to Florida with his wife and establish their primary residence in Florida. He has substantial debts and some of which have already resulted in Florida judgments. He asked whether he and his non-citizen, non-resident wife can maintain money and securities in protected joint financial accounts opened in Florida.

The general rule is that financial accounts owned jointly by a Florida debtor and his spouse are exempt from creditors as tenants by entireties property. The difference in this case is that the non-debtor spouse is not a U.S. citizen. Tenants by entireties protection is not found in any Florida statute so Florida’s written laws do not answer the question. Tenancy by entireties protection is a creation of appellate court decisions over many years. Tenancy by entireties protects Florida debtors. I am not aware of any court decision establishing residency or citizenship requirements for the non-debtor spouse.

I do not think a non-debtor spouse need be either a U.S. citizen or a Florida resident so long as the marriage is recognized by Florida law. In this case, I think joint accounts would be protected. If, however, the money or property deposited in the joint accounts is now titled in the name of the debtor only, a creditor could argue that transfer of funds to a new Florida joint account is a reversible fraudulent conveyance.

About the Author

Jon Alper is an expert in asset protection planning for individuals and small businesses.

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