Common Mistakes When Opening Tenancy by the Entirety Accounts

A tenancy by the entirety account is one of the simplest asset protection tools available to married couples in Florida. The protection is statutory, requires no trust document or special legal structure, and shields the account completely from the creditors of either individual spouse. The protection fails, however, when the account is not properly created.

Many married couples believe their joint bank or brokerage account is protected when it is not. The mistakes that destroy TBE protection typically happen at the moment the account is opened, and courts have consistently held that the responsibility falls entirely on the depositor—not the financial institution.

Selecting JTWROS When TBE Is an Option

The most frequent and most consequential mistake occurs when a married couple opens a joint account and the application form lists both “joint tenants with right of survivorship” and “tenants by the entirety” as separate options. If the couple checks the JTWROS box instead of the TBE box, they have disclaimed entireties ownership.

The Florida Supreme Court established this rule in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). The Court identified two ways that TBE ownership can be expressly disclaimed. The first is a signed statement that TBE was not intended, coupled with a designation of another ownership form. The second occurs when the financial institution offers TBE on the signature card alongside other options and the depositors select something other than TBE.

The second scenario is the more common trap. Brokerage firms like Charles Schwab present six different ownership options on their account applications. TBE is one checkbox, JTWROS is a separate checkbox, and the form includes no explanation of the legal consequences of each choice. A married couple that checks JTWROS has made an affirmative legal decision to reject TBE protection, even if they did not understand what they were doing.

In Wexler v. Rich (Fla. 4th DCA 2012), a bank employee chose “Multiple-Party Account with Right of Survivorship” over the TBE option that was also available. The bank employee never discussed TBE with the couple. The court held that the couple had disclaimed TBE because the form offered both options and a non-TBE selection was made. The court observed that the bank had no duty to explain or discuss account ownership options, noting that most Florida attorneys could not describe the differences between these account types.

When TBE is available on the form, select it. Do not assume that any joint account between spouses is automatically TBE.

Ignoring the Customer Agreement

A bank’s written customer agreement can independently disclaim TBE ownership even when the signature card is silent on the issue. The agreement is often dozens of pages of fine print signed at account opening, and most depositors never read it.

The Fourth District Court of Appeal addressed this directly in Storey Mountain, LLC v. George, 2023 WL 1999960 (Fla. 4th DCA 2023). The PNC Bank account at issue had a signature card that made no reference to the type of joint account being opened. However, the PNC customer agreement stated that spousal accounts are not owned as tenants by the entireties unless otherwise expressly designated on the account records.

The court held that the customer agreement constituted a written disclaimer of entireties ownership. Even though the signature card did not reject TBE, the separate contract the couple signed when they opened the account did.

The Storey Mountain decision expanded the scope of what counts as a TBE disclaimer beyond the signature card itself. Before this case, many attorneys interpreted Section 655.79 to mean that only the signature card mattered. After Storey Mountain, the entire deposit agreement is relevant. A bank can block TBE ownership through its standard contract terms without ever presenting the couple with a choice on the signature card.

Several major banks include TBE disclaimers in their customer agreements. Truist’s deposit agreement states that joint accounts are held as JTWROS “and not as tenants by the entirety.” Fifth Third Bank designates joint accounts as JTWROS “and not as tenancy by the entireties.” PNC reserves the right to refuse TBE entirely. Each bank’s policy is different, and some institutions that appear on standard lists of banks offering TBE actually disclaim it in the fine print.

Adding a Spouse to an Existing Account

For decades, adding a spouse to an individually opened account was one of the most dangerous mistakes in Florida TBE law. Under common law, TBE required the six unities of possession, interest, title, time, marriage, and survivorship. When one spouse opened an account individually and later added the other spouse, the unities of time and title were not satisfied because the two interests did not commence simultaneously.

The Fifth District Court of Appeal applied this rule in the Beal Bank litigation itself. A Merrill Lynch brokerage account originally opened by one spouse and later amended to include the other spouse was held subject to garnishment because the account lacked the unities of time and title. The Florida Supreme Court’s Beal Bank opinion expressly declined to address the Merrill Lynch account for this reason.

The Florida Supreme Court changed this rule in December 2025. In Loumpos v. Bank One, the Court held that a joint spousal account can qualify as TBE even if the account was originally opened by only one spouse, as long as the couple later executed signature cards designating the account as TBE.

The Court ruled that Section 655.79 controls over the common law unities of time and title for bank accounts. Under the statute, any deposit or account in the name of two persons who are husband and wife is considered TBE “unless otherwise specified in writing.”

The Loumpos decision resolved a conflict between the Second and Fourth District Courts of Appeal and simplified TBE creation for bank accounts. Married couples in Florida can now add a spouse to an existing bank account and designate it as TBE without the unity-of-time problem that previously defeated such arrangements.

Two important limitations remain. First, Loumpos applies to bank accounts governed by Section 655.79. Whether the same reasoning extends to brokerage accounts, stock certificates, or other personal property not covered by the statute remains an open question. For brokerage accounts, the safer approach is still to open a new joint account with both spouses from the beginning.

Second, the Loumpos decision requires that the couple’s intent to create TBE be clear. A couple that adds a spouse to an existing account and designates it as TBE on the new signature card satisfies the statute. A couple that adds a spouse and selects JTWROS does not. The statutory presumption applies only when TBE is not disclaimed in writing.

Banks Unilaterally Changing Account Titles

A less common but documented problem involves banks changing the account designation without the depositor’s knowledge or consent. One couple discovered that Bank of America had unilaterally reclassified their TBE account as “tenants in common.” The bank’s standard customer agreement reserved the right to modify account terms unilaterally.

Tenants in common provides no asset protection. Each spouse’s share is individually owned and individually reachable by that spouse’s creditors. The change from TBE to tenants in common eliminated the account’s creditor protection entirely.

The legal analysis turns on intent. Because the couple originally opened the account as TBE, they can demonstrate their intent to hold the account as an entireties account. If neither spouse signed anything accepting or initiating the title change, the original TBE designation should control. A bank’s unilateral contract modification does not necessarily override the depositors’ original intent to create a TBE account.

The practical problem is different. A judgment creditor that examines the account will see a tenants-in-common designation and may serve a writ of garnishment. The debtor spouse would then have to litigate the account’s history in court to prove that the account was originally TBE and that the change was unauthorized. The better solution is to monitor account statements periodically and, if a change is discovered, move the funds to a new TBE account at a different institution immediately.

Why the Statutory Presumption Is Not Enough

Florida Statutes Section 655.79 provides that joint accounts held by spouses are considered TBE “unless otherwise specified in writing.” The phrase “otherwise specified in writing” is where the protection breaks down. It includes the signature card, the customer agreement, and any other written document associated with the account that disclaims TBE.

The presumption does not apply equally in all circumstances. If the bank’s application offers a specific TBE option and the couple selects a different ownership form, no presumption of TBE arises. The couple has affirmatively chosen a non-TBE ownership structure. If the bank’s application does not offer TBE at all and does not disclaim it in the customer agreement, the presumption is strongest because the couple had no opportunity to select or reject TBE.

The safest approach is never to rely on the presumption when it can be avoided. If the institution offers TBE as an option, select it. If the institution does not offer TBE, read the customer agreement to confirm it does not disclaim TBE ownership. If the agreement does disclaim it, use a different institution.

How Divorce, Death, and Bank Mergers Affect TBE Accounts

TBE protection can be lost through events that occur after the account is opened.

Divorce immediately converts TBE property into tenancy in common. The moment a divorce becomes final, each spouse’s share of the formerly TBE account becomes individually reachable by that spouse’s creditors. A debtor spouse anticipating divorce should consider alternative asset protection strategies before the TBE ownership terminates. Florida law converts entireties property to tenancy in common upon divorce, and the conversion cannot be undone.

Death of one spouse also terminates TBE. The surviving spouse inherits the account through the right of survivorship, but the account is no longer TBE because TBE requires two living spouses. The surviving spouse’s creditors can now reach the account.

Remarriage after the death of a spouse does not automatically create TBE in existing accounts. A surviving spouse who remarries would need to open new accounts jointly with the new spouse and fund them with the inherited assets. The new accounts must satisfy TBE creation requirements independently.

Bank mergers and acquisitions can also affect TBE accounts. When one bank acquires another, the surviving entity’s customer agreement may differ from the original bank’s agreement. If the acquiring bank’s agreement disclaims TBE, the account may lose its TBE designation going forward. Couples should review their account terms after any bank merger notification and confirm that TBE ownership has been preserved.

Summary of Mistakes and Remedies

Mistake	Legal Consequence	Remedy
Selecting JTWROS when TBE was available	TBE disclaimed under Beal Bank; no creditor protection	Open new TBE account and transfer funds; some brokerages allow conversion
Not reading the customer agreement	Agreement may disclaim TBE even if signature card is silent; Storey Mountain	Review agreement before opening; switch banks if TBE is disclaimed
Adding spouse to existing account	Historically void—lacked unity of time/title; Loumpos (2025) now permits this for bank accounts	Bank accounts: re-designate as TBE on new signature card. Brokerage accounts: open a new joint account
Bank unilaterally changed title	May lose TBE designation on paper; original intent may still control	Move funds to new TBE account at a different bank
Relying on the statutory presumption	Presumption may not apply if alternative was available or agreement disclaims TBE	Confirm TBE designation on all account documents
Divorce or death of spouse	TBE terminates by operation of law	Plan alternative protection before the triggering event

Tenancy by the entirety provides strong creditor protection for married couples in Florida, but the protection depends entirely on how the account is created and maintained. Roughly 25 states recognize tenancy by the entirety, though few extend it as broadly as Florida does to personal property. Every married couple should review every signature card and customer agreement currently on file with their financial institutions.