The general rule is that property owned by a husband and wife as joint tenants with rights of survivorship is presumed to be a tenancy by the entireties (“TE”) which is protected from the individual debts of either spouse. I received an email question about a property owned by a husband, wife, and their child as joint tenants with rights of survivorship. The writer wanted to know if the property would be protected from one spouse’s creditor.
There is no tenancy by entireties ownership when a non-spouse is on title with survivorship rights. Tenancy by entireties is limited to property owned by married couples who meet certain ownership requirements. Therefore, a creditor could levy upon the debtor’s spouse’s interest. As there are three equal owners, the debtor’s interest is 1/3 of the property equity.
This family could have titled their property in a way which could have retained entireties protection. The parents could have owned their share as tenants by entireties and made their daughter a tenant in common for 1/3 or any other percentage of equity. The parents’ two-thirds interest in the property would be owned as TE property. The parents’ estate plan could have left their interest to the daughter upon their deaths, and the daughter could have bequeathed here interest to the parents, thereby accomplishing the same result as three-way survivorship but protecting the interest of the debtor parent.
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are there any cases on this point?
Here’s an excerpt from a pleading I filed in a pending partition action involving this type of ownership. A deed to H, W and X, in which H and W are married creates a tenancy by the entireties between H and W, and a tenancy in common between the interest held by H and W, and the interest held by X. Creditors of X could levy on X’s interest.
“The deed to [H, W, and X“, where H and W are Husband and Wife...], did not create a legal presumption that the three named individuals each acquired a 1/3 interest. A conveyance to a husband and wife and a third person, without a statement as to the share of each, creates a tenancy in common. A one-half interest is owned by the husband and wife as tenants by the entireties and a one-half interest is owned by the third person. Title Note 20.01.03, The Fund Title Notes (The Attorney’s Title Insurance Fund, Inc., 2005). The Fund Title Notes point out that there are no Florida cases directly on point, but the law is “well-settled” and the conclusion is based upon an evaluation of the nature of tenancy by the entireties ownership and ownership as tenants in common, as well as rulings from other jurisdictions. Florida Statutes Section 689.15 provides that “except in cases of estates by entirety”, a conveyance to two or more persons creates a tenancy in common, unless the instrument expressly provides for the right of survivorship.
The Fifth Circuit reviewed Florida law concerning conveyances to a husband and wife in Winchester v. Wells, 265 F. 2d 405, at 407 (5th Cir. 1959), and stated:
Where real property is conveyed or devised to husband and wife and a third person or persons, the husband and wife, being but one person in law, will together take only an undivided moiety or half of the estate, leaving the other half to the third person, or, if there are two other grantees or devisees, then husband and wife will taken only one third of the subject matter, and so on in accordance with the number of persons entitled. As between themselves, husband and wife are tenants by entirety of their share, but as to the third person they are together a joint tenant or tenant in common with him. On the death of one of the married pair, the surviving husband or wife will still hold a joint tenancy with the third person. Where real property is conveyed or devised to husband and wife and a third person or persons, the husband and wife, being but one person in law, will together take only an undivided moiety or half of the estate, leaving the other half to the third person, or, if there are two other grantees or devisees, then husband and wife will taken only one third of the subject matter, and so on in accordance with the number of persons entitled. As between themselves, husband and wife are tenants by entirety of their share, but as to the third person they are together a joint tenant or tenant in common with him. On the death of one of the married pair, the surviving husband or wife will still hold a joint tenancy with the third person. 41 C.J.S. Husband and Wife § 31 f, p. 454.
The nature of tenancy by the entireties ownership is such that the husband and wife are treated as one entity. Bendl v. Bendl, 246 So. 2d 574, 577 (Fla. 3rd DCA 1971), citing Naurison v. Naurison 132 So. 2d 623 (Fla. 3d DCA 1961). See also, Ohio Butterine Co. v. Hargrave, 84 So. 376 (Fla. 1920), which held that because the husband and wife are one entity, they acquire title in that manner unless a contrary intent is expressed in the conveyance.
One authority further stated, “In jurisdictions where tenancies by the entireties have not been abolished, a tenancy by the entirety may be created by a transfer to three or more persons, two of whom are husband and wife – e.g., by a transfer to H (husband), W (wife), and X, in which case H and W take an undivided one-half interest as tenants by the entirety, and X takes a one-half undivided interest as tenant in common vis-à-vis H and W.” The Law of Property, Cunningham, Stoebuck and Whitman (West Publishing Company 1984), citing Burt v. Edmonds, 456 S.W. 2d 342 (Tenn. 1969); Denis v. Denis, 152 Ark. 187, 238 S.W. 15 (1922); West Chicago Park Commissioners v. Coleman, 108 Ill. 591 (1884); Bartholomew v. Marshall, 257 App. Div. 1060, 13 N.Y. 2d568 (1930); Heatter v. Lucas, 367 Pa. 296, 80 A. 2d 749 (1951); Margarite v. Ewald, 252 Pa. Super. 244, 381 A. 2d 480 (1977).”
Opposing counsel ulimately agreed with my position.