Tenancy by the entirety is a legal arrangement that provides rights and protections for married couples who jointly own property. This can help prevent individual creditors from seizing the property of one spouse to pay off debts. Here’s what you need to know about tenancy by the entirety in Florida. A financial planner can also help you develop a more comprehensive estate planning strategy to protect your assets.
What Is Tenancy By the Entirety?
Tenancy by the entirety or TBE is a legal framework that allows married couples to jointly own property as a single legal entity. This means that both spouses have an equal and undivided interest in the property, and they are considered as a single unit in terms of ownership.
Property held as tenancy by the entirety is protected from the individual debts of one spouse. This means that if one spouse has financial troubles or faces a lawsuit, the property generally cannot be used to satisfy the debts of that spouse alone.
Tenancy by the entirety doesn’t exist everywhere, though. Florida is one of 25 states (plus the District of Columbia) that allow married couples to own property as tenants by the entirety. In Florida, tenancy by the entirety applies to both real property like land and real estate properties, as well as personal property like bank accounts and even businesses. This sets the Sunshine State apart from other TBE states that only extend tenancy by the entirety to real property.
Keep in mind that this form of ownership is exclusively available to legally married couples in Florida and is not typically an option for unmarried couples or other types of relationships.
Example of Tenancy By the Entirety
Consider a hypothetical scenario in which Sarah and John, a married couple residing in Florida, own their family home through TBE. Unfortunately, John faces unexpected health challenges and incurs a significant medical debt.
Despite the mounting pressure from creditors, their jointly-owned home remains protected under Florida law. Creditors cannot force the sale of the property to settle John’s individual debt, providing the couple with a crucial shield against financial upheaval during a challenging time.
Other Forms of Joint Ownership
Tenancy by the entirety isn’t the only form of joint ownership available in Florida. Property can also be owned via tenancy in common or joint tenancy with rights of survivorship.
Tenancy By the Entirety vs. Tenancy in Common
When property is owned via tenancy by the entirety, neither spouse can sell or transfer their interest without the other’s consent. In contrast, tenancy in common allows multiple owners to have individual shares of the property. These shares can be sold, transferred or inherited without the consent of the other co-owners.
Tenancy in common is the default form of joint ownership in Florida for non-married co-owners. If the deed to a property doesn’t explicitly spell out an alternative form of ownership, the owners will be assumed to be tenants in common.
Tenancy By the Entirety vs. Joint Tenancy With Rights of Survivorship
Joint tenancy with rights of survivorship shares a significant similarity with TBE: If one owner passes away, the surviving owner(s) automatically inherit the deceased owner’s share. However, the crucial difference is that TBE is exclusively for married couples, while joint tenancy can be formed by any two or more individuals with equal ownership stakes, regardless of their relationship.
Creditor protection is another key difference. Property that’s owned by joint tenancy with rights of survivorship isn’t shielded from one of the owner’s creditors.
How to Establish Tenancy By the Entirety in Florida
The range of assets that can be represented under tenancy by the entirety in Florida is quite extensive, providing married couples flexibility and protection across multiple aspects of their financial planning. Additionally, both spouses must consent to any transactions involving assets owned by tenants by the entirety.
Here’s how tenancy by the entirety is established for common assets in Florida:
Bank Accounts
When a husband and wife open a joint bank account in Florida, there’s a presumption that it’s a TBE account. The couple would have to expressly state in a contract or signature card that it does not want to own the asset by the entireties or that another type of joint ownership is preferred.
Real Estate
Tenancy by the entirety is commonly used for real estate ownership in Florida. To establish it, the couple must include specific language in the property deed. Like other assets owned via TBE, both spouses must share equal rights to possess, enjoy and control the property, and the title must be held jointly.
Tax Refunds
Federal tax refunds are generally considered the property of both spouses in a tenants by the entirety arrangement, regardless of who earned the income. This means that if one spouse earns substantially more income than the other, and they receive a federal tax refund, it is typically considered joint property.
Vehicles
Like real estate in Florida, to establish TBE for a vehicle, the title must explicitly state that the owners hold the property as tenants by the entirety. It’s essential to ensure that the requirements of Florida law are met when setting up this ownership structure.
Pros and Cons of Tenancy By the Entirety
While tenancy by the entirety offers married couples unique benefits, there are also disadvantages associated with this form of joint ownership in Florida.
Pros of Tenancy By the Entirety
- Creditor protection: One of the primary benefits of tenancy by the entirety is that it provides strong protection against creditors. If one spouse owes a debt or incurs a legal judgment, the property held in tenancy by the entirety is generally safe from being used to satisfy that debt, as long as both spouses are alive and married.
- Probate avoidance: TBE offers a streamlined process when one spouse passes away. In Florida, when one spouse in a TBE arrangement dies, the surviving spouse automatically becomes the sole owner of the property, without the need for probate. This can save time, money and emotional stress during an already challenging period.
Cons of Tenancy By the Entirety
- Limited applicability: Tenancy by the entirety is exclusively available to married couples, excluding other family members or business partners who may wish to co-own property.
- Marital discord: If a married couple goes through a divorce, the tenancy by the entirety may complicate property division, as both spouses have equal rights to the property. Resolving ownership disputes can be challenging.
- Creditors of both spouses: While this form of ownership offers creditor protection in most cases, it is not foolproof. If both spouses are jointly liable for a debt, the property may still be vulnerable to creditors.
Bottom Line
Tenancy by the entirety in Florida is a unique and advantageous way for married couples to jointly own property. It provides creditor protection, the right of survivorship and requires mutual consent for property-related decisions. While tenancy by the entirety is automatically established when married couples own some types of property together, others require a specific reference to TBE in the deed.
Asset Protection Tips
- While tenancy by the entirety can protect the assets owned by married couples, irrevocable trusts are another way to protect assets from creditors. Irrevocable trusts can also help you avoid probate and keep your estate out of the public record when you pass away. However, keep in mind that transferring assets to an irrevocable trust means you’ll no longer own the property.
- A financial advisor can help you explore ways to protect your assets and manage risk. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
Photo credit: ©iStock.com/adamkaz, ©iStock.com/svetikd, ©iStock.com/xbrchx