Tenants by the Entireties Exemption
The Bankruptcy Code generally provides for the exemption of property held as a tenant by the entirety or joint tenant to the extent that it is exempt from process under state law.
Property held in a tenancy by the entireties is generally exempt from the claim of individual creditors under Florida common law but is not exempt to the extent of joint debts of both spouses or to the extent of a fraudulent conveyance into the property.
Under Florida law, property held by a husband and wife as tenants by the entireties belongs to neither individual spouse, but to a separate entity referred to as the "unity" or "the marriage." Florida law recognizes that entireties estates can exist in both real and personal property. Property held as tenancy by the entireties generally possesses six characteristics: 1. unity of joint ownership and control (unity of possession), 2. unity of interest, 3. the interests must have originated in the same instrument (unity of title), 4. the interests must have commenced simultaneously (unity of time) 5. survivorship, and 6. the parties must be married at the time they took joint title (unity of marriage).
Florida law provides that real property held by a husband and wife in joint names is held in a tenancy by the entireties absent some express indication to the contrary. Florida law also provides a presumption that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the unities of possession, interest, title, and time are met. Various court decisions extend the presumption in favor of a tenancy by the entireties to personal property in various manners. Some courts extend the presumption to all personal property.
The tenancy by the entireties status does not limit a creditor's ability to proceed under other theories such as Florida's Uniform Fraudulent Transfer Act (FUFTA) and the fraudulent asset conversion statute.
Property held in a tenancy by the entireties is generally exempt from the claim of individual creditors under Florida common law but is not exempt to the extent of joint debts of both spouses or to the extent of a fraudulent conveyance into the property.
Under Florida law, property held by a husband and wife as tenants by the entireties belongs to neither individual spouse, but to a separate entity referred to as the "unity" or "the marriage." Florida law recognizes that entireties estates can exist in both real and personal property. Property held as tenancy by the entireties generally possesses six characteristics: 1. unity of joint ownership and control (unity of possession), 2. unity of interest, 3. the interests must have originated in the same instrument (unity of title), 4. the interests must have commenced simultaneously (unity of time) 5. survivorship, and 6. the parties must be married at the time they took joint title (unity of marriage).
Florida law provides that real property held by a husband and wife in joint names is held in a tenancy by the entireties absent some express indication to the contrary. Florida law also provides a presumption that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the unities of possession, interest, title, and time are met. Various court decisions extend the presumption in favor of a tenancy by the entireties to personal property in various manners. Some courts extend the presumption to all personal property.
The tenancy by the entireties status does not limit a creditor's ability to proceed under other theories such as Florida's Uniform Fraudulent Transfer Act (FUFTA) and the fraudulent asset conversion statute.