A blog reader sent me an email about his Bank of America joint checking account which he and his wife opened many years ago. He says the account was originally titled as “tenants by entireties. Just recently, he saw that BOA unilaterally changed the title on his account to “tenants in common.”

Tenants in common joint accounts provide no asset protection. Upon reading his bank account contract he saw that the bank reserved the right to unilaterally change the terms of the contract without notice to or consent from the account holder. The reader wants to know if the account has grandfathered entireties protection.

In Florida, joint marital financial assets are presumed to be owned tenants by entireties regardless of whether the financial institution offers entireties accounts. This case is not a matter of “grandfathered” title as it is a matter of the depositor’s intent. Because the couple originally opened an account designated as an entireties account they easily can prove their intent to have an entireties account rather than a tenant in common account. As long as the couple did not sign anything to initial, or accept, the title change I do not think the account has lost its entireties protection.

There is a practical problem, however, in the event one of the two spouses is subject to a civil judgment. A judgment creditor that examines the bank account will see an unprotected tenants in common account and may serve a writ of garnishment on BOA. The debtor spouse would then have to prove that the account is an exempt entireties account. The debtor would have to explain to a judge the account’s history and prove that the account was initially an entireties account.

The safer and more practical solution is to move the money to an account at a different bank specifically titled as a tenants by entireties account.

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I’m a nationally recognized attorney specializing in asset protection planning. I graduated with honors from the University of Florida Law School and have practiced law for almost 50 years.

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