Interesting Question About Tenancy By Entireties Accounts
I am involved in two cases which present an interesting issue about tenants by entireties bank accounts. Property owned by married couples as tenants by the entireties is exempt from the creditors of either individual spouse, but not from joint creditors. The Florida Supreme Court said that in most cases bank accounts owned jointly by spouses are presumed to be owned as tenants by the entireties. The Supreme Court, and previously other appellate courts, pointed out that there are facts which must be established in order for any property to be owned as tenants by the entireties. One such requirement is that the spouses must take title to the property simultaneously during their marriage in order to establish a tenancy by the entireties.. This requirement raises an interesting issue in certain instances.
Suppose that a man and a wife, unmarried, open a joint account with a small opening deposit. Subsequently, the same couple marries and over the years deposits significant money into the same account. The issue is whether this account is protected from their separate liabilities as tenants by entireties property. One view is that since the account was opened before their marriage the account cannot be a T by E account and all money in the account is unprotected joint property. The alternative argument is that while the initial deposit made prior to their marriage is not T by E any money deposited into the account after their marriage is T by E property acquired jointly during their marriage.
The Supreme Court discussed in great detail ownership of bank accounts and other personal property as tenants by entireties but the Court did not clearly consider the question of whether the bank account must meet requirements of T by E or whether money deposited in the account must demonstrate T by E characteristics. I find credible argument on both sides of this issue, and it will be interesting to see how courts resolve the question.
posted by Jonathan Alper, asset protection and bankruptcy lawyer, Orlando, Florida
