My November, December, and February posts, discussed details of homestead protection in Florida including requirements, benefits and pitfalls. If you are married, another asset protection and estate planning tool available to you is Tenants by the Entirety (“TBE”) ownership. In Florida, a married couple may own several types of property TBE, including, but not limited to, bank accounts, real property (including their homestead) and personal property. In fact, Florida law presumes that property acquired by a married couple is TBE property if the “six unities” of TBE ownership are present. The six unities required for TBE ownership are (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).
Under Florida law, the benefit of owning property TBE is that it is exempt from process to satisfy debts owed to individual creditors of either spouse. This is because an interest in TBE property is not equivalent to one half of the equity in the property, but rather, an inseverable interest in the whole owned by both spouses.
However, TBE is not a perfect asset protection tool as it can be broken, severed, and/or create unwanted liability.
- TBE property is not exempt from process to satisfy joint debts of both spouses;
- TBE protection dissolves if one of the spouses passes away;
- TBE protection is broken by divorce; and
- TBE ownership of cars, boats and/or other recreational vehicles could result in liability for both spouses under the dangerous instrumentality doctrine.
TBE ownership is not right for everyone or every situation, but it is worth considering if it is available to you.
Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.