Florida Tenancy by the Entirety

The Short Answer

A common question I hear is, "We own everything jointly, so we are covered, right?" Owning jointly and owning as tenants by the entirety are two different things in Florida, and the gap between them is where a creditor of one spouse gets in.

Tenancy by the entirety is a way for married couples to own property where the two of you own the whole thing together, not separate halves. Because neither spouse holds a share of their own, a creditor of one spouse generally cannot reach it. Florida is unusually generous here, because the protection covers real estate, bank and brokerage accounts, and other personal property. The protection is automatic, costs nothing, and is one of the best everyday safeguards a Florida married couple has.

What It Protects, and What It Doesn’t

The entireties form shields a couple’s jointly held property from a judgment against one spouse alone, which is genuinely powerful. Three limits matter.

• Entireties ownership does not protect against debts the couple owes jointly, where both spouses are liable.
• Entireties ownership does not beat a federal tax lien. The IRS can still reach a spouse’s interest.
• The tenancy ends at divorce or the first spouse’s death, when the property becomes the survivor’s alone and loses the protection.

So the protection guards two living, married spouses against one spouse’s separate creditors. Treat it as a strong first layer rather than a full plan.

The Six Things That Have to Be True

Florida does not hand out this protection because a couple is married and owns something together. The Florida Supreme Court has set out six characteristics, and property held as a tenancy by the entirety has to satisfy all of them.

1. Unity of possession. Both spouses own and control the whole of the property.
2. Unity of interest. The two interests are identical.
3. Unity of title. Both interests originated in the same instrument.
4. Unity of time. Both interests commenced at the same moment.
5. Survivorship. The survivor takes the whole.
6. Unity of marriage. The parties were married when the property became titled in their joint names.

Four of those six are about how the property came to be owned rather than who owns it, which is why adding a spouse to something you already owned is the step that most often fails. An account you opened in 2019 and added your husband to in 2024 has no unity of time and no unity of title, because your interest started five years before his and came from a different document. Closing that account and opening a new one in both names at the same moment cures both defects in an afternoon.

Practice pointer. Ask when each asset was titled, not just whose names are on it. In the situations I am asked to review, the house usually qualifies because the couple bought it together, and the accounts usually do not, because one spouse opened them first and the other was added later.

Are Our Joint Bank Accounts Protected by Tenancy by the Entirety?

People ask me some version of this constantly, and the sharpest way I have seen it put came from somebody who had already found the problem. Their post read, "Our attorney listed my wife and I as JTWROS instead of TBE." Joint tenants with right of survivorship and tenants by the entirety look almost identical on a form and behave very differently when a creditor arrives.

Florida law starts you off in the right place. Any deposit or account in the names of two people who are married is considered a tenancy by the entirety unless otherwise specified in writing. The Florida Supreme Court reached the same result for accounts that predate that rule, holding that where the signature card does not expressly disclaim the entireties form, the account is presumed to be held that way.

The presumption dies on those last four words. Something specified in writing beats it, and the writing that usually does the damage is the bank's own form. A signature card offering a list of ownership types, with a box for a multiple-party account and a separate box for a tenancy by the entireties, defeats the presumption the moment somebody checks the wrong box. Nobody has to explain the difference to you. A Florida appellate court has held that a bank's obligation is to offer the option, not to help a customer make a considered choice, and that a customer who signs the form is presumed to know what it says.

Practice pointer. Pull the signature card for every joint account rather than trusting the presumption. Ask the bank in writing to designate the account as a tenancy by the entireties, and if their form has no such box, move the account. The teller who opens your account will often not know the difference, and the form they fill in is the evidence a judge reads later.

What Happens If We Put the House in a Living Trust?

Moving a home you own as tenants by the entirety into a joint revocable living trust puts the protection at risk, and Florida gives no clean answer on it. No Florida appellate court has squarely decided whether the tenancy survives the transfer, so nobody can tell you with certainty which way it comes out. The conservative reading, and the one worth planning around, is that the tenancy does not survive, because the property is no longer held by two married people. A trust is not a spouse.

The trade-off is real rather than theoretical. A revocable trust buys probate avoidance and incapacity planning. The entireties form buys protection from a creditor of one spouse. A couple where one spouse carries professional liability, a personal guarantee, or a business exposure is usually better served leaving the homestead in entireties and letting the trust hold everything else. A lady bird deed can then handle the probate question for the house without disturbing the ownership form.

Practice pointer. Decide which risk is larger before the house moves anywhere, because the transfer is easy and the unwinding is not. In my practice the couples who get this wrong are the ones who funded a trust thoroughly, exactly as they were told to, without anybody asking which spouse gets sued.

Is It Actually in Place?

In Florida, property a married couple holds jointly is generally presumed to be tenancy by the entirety, but the presumption can be rebutted, and titling matters. Assuming the protection is there is not the same as confirming it. We review how your home and accounts are held, make sure the protective form is in place, and pair it with the other tools, the homestead and retirement protections and proper entities for business or rentals, so the whole picture holds together. Remember too that the protection ends at the first death, so the surviving spouse usually needs new protections then.

Frequently Asked Questions

The Word That Costs Couples This Protection Is “Joint”

In 14 years of law practice, tenancy by the entirety is the protection people are most confident they already have and least able to prove. Married couples tell me their accounts are joint, which is true, and take it to mean the accounts are protected, which does not follow. I read the Florida cases on this rather than relying on a summary of them, and the couples who lose the argument are almost never the ones who did something wrong. The couples who lose used the ordinary English word instead of the legal one.

In one case I have reviewed, a husband in a second marriage converted two of his own bank accounts into accounts he held with his wife. The couple told the bank employee they wanted joint accounts, which is exactly what people say. The bank's form had a list of ownership types, and two of the choices were a multiple-party account and a multiple-party account held as a tenancy by the entireties. The employee checked the ordinary one. She had never been taught the difference and so she never raised it, and nobody was asked to initial next to the box. Both spouses signed at the bottom after reading the form for accuracy.

The accounts held $105,478.05 each. A little over a year later the husband closed them, took two checks in his own name, moved the money to an account at another bank, and three days before he died he signed papers putting that account into his revocable trust without telling his wife. She sued, and the trial judge agreed with her that the accounts had been held as tenancies by the entirety, which would have meant her husband could not have moved a dollar of it without her consent. The appellate court reversed her. Because the accounts were ordinary joint accounts, his withdrawal ended the arrangement, and the $210,956.10 was his to move.

The line from that opinion I have never forgotten is the court's own observation that only a handful of attorneys in Florida can describe the difference between an entireties bank account and a joint account with a right of survivorship. The court used it to explain why the bank owed the couple no explanation. A customer who signs the form is presumed to know what it says, and the bank's job is to offer the option rather than to make anyone understand it.

Avoid treating the presumption as a plan. In my practice the review takes twenty minutes and consists of reading signature cards and deeds, which is unglamorous work that has never once failed to turn something up. The protection is free, and confirming you actually have it is the only part anybody pays for.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Any case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Sources of Law

• Florida tenancy by the entirety (real and personal property; the presumption for jointly held marital accounts): Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001). (retrieved 2026-06-08)
• The six characteristics of a Florida tenancy by the entirety (unity of possession, interest, title, time, survivorship, and marriage): Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 52 (Fla. 2001), citing First Nat’l Bank v. Hector Supply Co., 254 So. 2d 777, 781 (Fla. 1971). Verified against the opinion text 2026-09-01.
• Fla. Stat. §655.79(1): a deposit or account in the name of two persons who are husband and wife is considered a tenancy by the entirety unless otherwise specified in writing (added by ch. 2008-75, effective October 1, 2008). Verified against the 2025 statute text 2026-09-01.
• Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012): where a bank form offered a tenancy by the entireties option and the parties signed an agreement selecting a multiple-party account with right of survivorship instead, the entireties presumption was expressly disclaimed, and a bank has no duty to explain the options. Read in full 2026-09-01.
• Limits: joint creditors are not barred; federal tax liens are not defeated (United States v. Craft, 535 U.S. 274 (2002)); the tenancy ends at divorce or the first spouse’s death.

Updated on September 1, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. Asset-protection planning must be done before a claim arises and depends on your facts. Do not send confidential information until we have agreed to represent you.