Florida law protecting tenants by entireties bank accounts from garnishment against one spouse is based mostly on the Florida Supreme Court decision in the Beal Bank case. Most attorneys, on the debtor and creditor sides, believe that case established the rule that marital joint accounts with rights of survivorship are presumed to be owned as tenants by entireties, and that a creditor on one spouse has the burden of proving that the spouses did not intend their joint account to be owned by the entireties.
In the course of a bankruptcy case a Florida District Court issued a slightly different interpretation of the bank account presumption. The Court said that in the case of a bank that does not offer its customers the option of entireties accounts the debtors have the initial burden of showing their intent to own a marital account by the entireties. A married couple may still have an entireties account notwithstanding bank policy against such accounts provided the couple proves intent.
It may be practically difficult for married couple to show entireties intent where the institution does not offer entireties ownership. The couple must know enough to ask for entireties ownership, and then if refused the option by the bank, they must be sophisticated enough to document their request and intent.
If you and your spouse believe your joint bank account with survivorship is owned tenants by entireties you should make sure your bank either expressly offers entireties ownership, or as in many cases, states in the bank deposit agreement that joint marital accounts are presumed to be entireties account. Where your bank does not offer entireties ownership to joint marital accounts you should write a letter to the bank requesting entireties ownership and stating your understanding that your joint account is owned by the entireties regardless of bank policy.
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