What are Tenants by the Entirety and Why is it Important?
Tenancy by the entirety (sometimes referred to as tenancy by the entireties) is a form of jointly owned property that applies only to married couples. As tenants by the entireties, the spouses own the subject property mutually. It is not a 50/50 ownership interest. The spouses own the property as a single unit and possess each an 100% interest in the property. This form of ownership also creates a right of survivorship. Therefore, if one spouse dies, the surviving spouse automatically receives full title to the property.
In Florida, when married couple jointly owns personal property, presumption arises under Florida law that the property is owned as tenants by the entireties. In re Golan, 600 B.R. 697 (Bankr. S.D. Fla. 2019).
For a property to be qualified under the tenancy by the entirety, the couple must have acquired the property under five requirements, also known as unities:
- Marriage-The couple must be married at the time the deed is issued.
- Possession-The couple jointly own and control the property.
- Title-The couple’s names are on the property deed.
- Interest-The couple hold equal interests in the property.
- Time-The couple purchase the property at the same time.
This ownership interest does not apply to any other partnership such as friends, family members, or business associates.
In Florida, all types of property-tangible or intangible-can be held as tenants by the entireties by a married couple. It means that bank accounts, vacation homes, stocks and other securities, and any other assets, can be held in tenancy by the entirety.
Tenancy by the entirety is important because it provides certain protections. Florida law provides that any property owned by the spouses as tenants by the entireties is protected from a judgment creditor of either of the individual spouses. This means that creditors cannot go after the property if only one spouse is sued for unpaid debt.
“When property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse.” Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001).
In addition, because the surviving spouse possess right of survivorship, the property will avoid probate which can be a costly, time consuming, and bureaucratic process.
Tenancy by the entireties can be terminated if there is a divorce, a mutual agreement to sever, or joint conveyance of the property. In either case, the interest property will be converted into a tenancy in common, which is another form of ownership. Tenancy in common, unlike tenancy by the entireties, does not provide for any rights of survivorship.
Another type of ownership worth mentioning is called joint tenancy. In joint tenancy, two or more people, related or not, can hold equal interests in the property, but each owners’ interest is not 100%, as in tenancy by the entirety. For example, if two people share the joint tenancy, they both have 50% interest in the property.
Joint tenancy offers rights of survivorship but, unlike tenancy by the entirety, joint tenancy does not offer any protections against creditors. For example, if your co-owner(s) has legal or financial problems, his creditors can claim his interest in the property and force a sale of the entire property to satisfy the debt owed by your-co-owner(s).
To get more information, please call the Elder Law Center of Kirson and Fuller at 407-422-3017 to book a consult with one of our experienced attorneys.
Written by: Jessica Polycarpe
JD Candidate 2022