Are Florida Laws on Tenancy by the Entireties in Personalty as Clear as We Think?

In basic terms, at common law, there was some doubt about whether a married couple could jointly own property with the right of survivorship or by the entirety. This is because specific requirements, called “unities,” had to be met for these types of ownership. Tenancy by the entirety (TBE) is a form of ownership only available to married couples, and it has six unities, including the unity of marriage. On the other hand, a joint tenancy with the right of survivorship only needs the first five unities. When it comes to legal consequences, there are important differences between TBEs and joint tenancies, especially when it comes to bankruptcy or creditors trying to claim the property. When a married couple holds property as tenants by the entirety, each spouse actually owns the entire property, not just a share of it. In a joint tenancy with right of survivorship, each person owns an equal share of the property and when one person dies, the other person automatically gets the whole thing. If one person owes money, a creditor can take that person’s share of the property. But in a tenancy by the entireties, both spouses own the whole property together and creditors can’t take it to pay off just one person’s debt. Also, neither spouse can sell or divide the property without the other’s permission. This applies to both real estate and personal property, but the rules for forming a tenancy by the entireties are different for each. In the past, it was unclear if a joint tenancy with right of survivorship could be created without using a straw man. However, laws changed to allow for joint tenancy with right of survivorship unless specifically stated otherwise. In a court case, a deed with a specific statement was enough to create a joint tenancy with right of survivorship, even without using a straw man. The court decided that the intention of the people giving the property was clear. In Ratinska v. Denesuk, the court had to decide if a property was owned jointly with a right of survivorship or as tenants in common. The court ruled that a single conveyance was enough to create a joint tenancy with a right of survivorship, and a straw man conveyance was not necessary. This means that one spouse can create this type of ownership by deeding a property into both spouses’ names. In Florida, when it comes to owning property, real estate like houses and land is treated differently than personal property like bank accounts. When a husband and wife own real property, they are considered to have a special type of ownership called “tenancy by the entireties,” which means that if one spouse dies, the other automatically gets full ownership. But for personal property, like a joint checking account, both the form of the ownership and the intention of the spouses must be proven. This is because personal property can be bought and sold more easily, and the rules for ownership can get more complicated. In a specific court case, the Florida Supreme Court said that even though a bank account had rules allowing one spouse to act on it, that didn’t necessarily mean it wasn’t still owned as a tenancy by the entireties. This means that in the case of personal property, the way the ownership is set up and the intention of the spouses both matter when it comes to who owns what. In a Florida case, the court said that one spouse can act for the other in a joint bank account as long as there’s a clear agreement. Another case found that if a joint account is held as a tenants by the entireties (TBE), a creditor can’t take money from it if they’re only after one spouse. The court said the creditor has to prove the account isn’t held as TBE. But if the bank account states it’s a joint tenancy with right of survivorship, it’s not considered TBE. If the bank account says it’s not a TBE, the debtor can try to prove it actually is if the bank didn’t offer a TBE option. The Beal Bank case was about bank accounts owned by a married couple. The court decided that if a bank account is titled in the names of both spouses and doesn’t specifically say otherwise, it should be presumed to be owned as “tenants by the entireties” (TBE), which means the money belongs to both spouses equally. If a creditor wants to prove otherwise, they have to show evidence that a TBE wasn’t created. The court also said that simply saying an account is held as joint tenants with right of survivorship doesn’t necessarily mean it’s not a TBE. If a signature card for a joint bank account says it’s not held as tenants by the entireties (TBE) and specifies a different type of ownership, there’s no presumption that it’s a TBE. However, if the debtor can show that the bank didn’t offer TBE ownership or explicitly said it wasn’t allowed, they can prove with other evidence that they intended for the account to be a TBE with their spouse.

Beal Bank is an important case because it says that if an account is held by both spouses and meets certain requirements, there’s a presumption that it’s a TBE, and a creditor has to prove it’s not. But there are still questions because the court didn’t address a specific situation in the case. Another case, In Re Aranda, said that the unities for TBE ownership have to be met when the account is opened, and just adding a spouse’s name later isn’t enough. In Florida, a court case called Cacciatore v. Fisherman’s Wharf Realty said that the Beal Bank ruling also applies to stock certificates. This means that if a married couple owns stock together, it’s assumed to be owned as tenants by the entireties, which gives them certain legal protections. Other court cases have also said that Beal Bank should apply to all kinds of personal property, not just financial accounts. It means that if a husband and wife own something together in Florida, it’s usually assumed to be owned as tenants by the entireties, which comes with certain legal benefits. In 2008, a banking law in Florida was changed so that if a bank account is in the name of a husband and wife, it is automatically considered a tenancy by the entirety, unless it’s written differently. This makes bank accounts different from other types of property. This change was made to follow a recommendation from the Supreme Court, and it makes it harder to argue about the intent of the account if it says “Jt Ten” or “joint tenants with right of survivorship.” In Florida, if a car or mobile home is registered in the names of two people with “or” between their names, they own it as joint tenants. This means if one of them dies, the other person gets the whole car or mobile home. If it’s registered with “and,” both people have to sign to transfer ownership. There are no clear rules for how to own other stuff, like bank accounts, with your spouse. This causes confusion and should be fixed by the law. This list of legal citations is from an article written by Anne Buzby-Walt, a certified wills, trusts, and estates lawyer. The article was based on a paper by Justin Savioli and Patrick Lannon. It was submitted by the Real Property, Probate and Trust Law Section. The citations refer to various court cases and are used as references for legal arguments. We want our members to understand their responsibilities to the public, make the legal system better, and make progress in the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/are-florida-laws-on-tenancy-by-the-entireties-in-personalty-as-clear-as-we-think/