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 for bank accounts, requires no trust document or special legal structure, and keeps the account out of reach of a creditor of one 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 no Florida statute or decision requires the bank to explain the choice. The Florida Supreme Court declined to impose that requirement in Beal Bank, and the Legislature has never enacted one.

Selecting JTWROS When TBE Is an Option

A married couple loses entireties protection outright when the account application lists both “joint tenants with right of survivorship” and “tenants by the entirety” as separate options and they check the survivorship box. That selection is an express disclaimer of entireties ownership under Beal Bank, and no presumption saves it.

A bankruptcy court reached the same result in In re Planas, 199 B.R. 211 (Bankr. S.D. Fla. 1996), rev’d in part sub nom. Planas v. Feltman, 1998 WL 757988 (S.D. Fla. Aug. 21, 1998). A couple whose Merrill Lynch application offered an entireties designation chose survivorship instead, and the district court affirmed that the account was not entireties property.

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.

Brokerage account applications list several ownership forms side by side. Entireties ownership is one checkbox, joint tenancy with right of survivorship is another, and the form does not explain what either choice does. 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, 80 So. 3d 1097 (Fla. 4th DCA 2012), a bank employee checked the plain “Multiple-Party Account” box on a form that also offered a tenancy-by-the-entireties version of the same account. The 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.

Where the form offers entireties ownership, checking that box settles the form of ownership. A joint account between spouses is not automatically entireties property once the form has put the choice in front of them.

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, 357 So. 3d 709 (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, but the card did say that signing it bound the couple to the bank’s standard checking account agreement. That 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 incorporated agreement was a written disclaimer of entireties ownership under Section 655.79, and reversed the order dissolving the writ of garnishment against the account.

The decision in Storey Mountain moved the disclaimer off the signature card. The trial court had ruled that only the card itself could disclaim entireties ownership, and the Fourth District reversed. Section 655.79 uses the narrower phrase “signature card” in its survivorship sentence, but the entireties sentence says only “writing.” A document incorporated by reference into the card the couple signed is such a writing.

What that writing has to say is a separate question, and the Eleventh Circuit answered it in Storey Mountain, LLC v. Del Amo (In re Del Amo), 158 F.4th 1335 (11th Cir. 2025). An agreement must disclaim entireties ownership expressly. Boilerplate stating that joint accounts are held as joint tenants with right of survivorship does not do it, because saying the account is something else is not the same as saying it is not entireties property.

Four major banks disclaim entireties ownership in their customer agreements: Truist, PNC, Regions, and Fifth Third. Truist’s Bank Services Agreement provides that an account owned by two or more individuals “will be treated as joint tenants with right of survivorship, and not as ‘tenants in common’ or as ‘tenants by the entirety’.” Fifth Third designates a joint account as “owned as joint tenants with right of survivorship, not as tenancy by the entireties.” PNC’s agreement says a spousal account is “NOT owned as tenants by the entireties unless otherwise expressly designated on the Account records” and reserves the right to refuse the registration, and the Florida disclosures in the Regions deposit agreement carry the same conditional form. At the other large banks the agreement either recognizes entireties ownership or never names and rejects it, and the bank-by-bank comparison sets out where each one stands.

Adding a Spouse to an Existing Account

Adding a spouse to an individually opened bank account no longer destroys entireties ownership in Florida. That was the rule for decades, and it may still be the rule for brokerage accounts, which the governing statute does not cover.

Under common law, entireties ownership required six unities: possession, interest, title, time, marriage, and survivorship. An account one spouse opened alone and later retitled failed the unities of time and title, because the two interests did not commence simultaneously.

In the Beal Bank litigation, the Fifth District held that a Merrill Lynch account, opened in one spouse’s name and later retitled into both, could be garnished. The Florida Supreme Court expressly declined to address that account.

The Florida Supreme Court changed this rule in December 2025. In Loumpos v. Bank One, the Court held that § 655.79 authorizes a joint spousal bank account to be held as tenants by the entirety even if the account was originally established by one spouse. No new signature card is required: the statute presumes entireties ownership unless a writing disclaims it.

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.”

Marriage itself is still required: in In re Caliri, 347 B.R. 788 (Bankr. M.D. Fla. 2006), accounts a couple opened together before their wedding failed the unity of marriage and were not entireties property.

The Loumpos decision resolved a conflict between the Second and Fourth District Courts of Appeal. An account already converted no longer fails the unity-of-time test when a creditor attacks. Opening a new account with an entireties designation and moving the funds is still the stronger plan.

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 presumption is a default, not a requirement of proof: an account in both spouses’ names is presumed entireties unless the account agreement or signature card disclaims it in writing. A couple that adds a spouse and, offered a tenancy-by-the-entirety option, selects JTWROS instead has disclaimed it; a bank’s boilerplate survivorship language alone does not.

Banks Unilaterally Changing Account Titles

Banks sometimes change an account’s ownership designation on their own, relying on a customer agreement that reserves the right to modify account terms. A couple who opened an entireties account can find a later statement describing it as a tenancy in common.

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 eliminates the account’s creditor protection entirely.

The analysis turns on what the couple put in writing. Section 655.79 defeats the entireties presumption only where the account holders themselves specified another form of ownership, and Storey Mountain located that writing in a document the couple’s own signature card adopted. A change the bank makes and the couple never signed is not that writing.

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 writing can be the signature card or an account agreement the card incorporates. It has to disclaim entireties ownership in terms; giving the account another label is not enough.

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 account is entireties property under the statutory presumption, because no writing specifies otherwise.

The presumption is a fallback. An account that never needs it is stronger. A bank whose application offers entireties ownership settles the question the moment the couple selects it. The customer agreement decides at a bank that offers no such choice, and an agreement that disclaims entireties ownership is a reason to bank somewhere else.

How Divorce, Death, and Bank Mergers Affect TBE Accounts

Divorce and the death of a spouse end entireties ownership by operation of law, and a bank merger can change the terms an account was opened under.

Divorce leaves the account a tenancy in common, and the change cannot be reversed. Under Section 689.15 it happens the day the dissolution is final, and no court order is needed. Each former spouse’s half is then individually reachable by that spouse’s creditors. A debtor spouse who sees a divorce coming should look at other asset protection options first.

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 convert the surviving spouse’s existing accounts into entireties property on its own. Adding the new spouse to a bank account brings the statutory presumption into play under Loumpos, but a new account titled as entireties from day one is still the reliable route.

Bank mergers and acquisitions put a different agreement in front of an account the couple never re-opened. The disclaimer in Storey Mountain worked because the couple had signed a signature card that adopted the bank’s agreement, which an acquiring bank’s later terms do not replicate. A creditor can still argue the point, so an entireties account is worth moving to a bank whose agreement does not disclaim it.

What Each TBE Mistake Costs and How to Fix It

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
Not reading the customer agreement	An incorporated agreement can disclaim TBE even if the signature card is silent; Storey Mountain	Review agreement before opening; switch banks if TBE is disclaimed
Adding spouse to existing account	Defeated the unities of time and title until Loumpos (2025); bank accounts now keep the statutory presumption	Open a new joint TBE account and transfer the funds
Bank unilaterally changed title	May lose TBE designation on paper; only a writing the couple signed can disclaim entireties ownership	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 protects a married couple’s account when a creditor pursues one spouse alone, and how the account was created decides whether they have that protection. Twenty-four states and the District of Columbia recognize tenancy by the entirety, and Florida is one of the states that apply it to personal property as well as real estate. Two documents settle the question for any given account: the signature card and the customer agreement the couple signed.