Tenancy by Entirety (TBE) is a type of ownership interest only available to married persons, wherein each spouse owns an undivided 100% of the subject asset. Real or personal property owned by married persons in Florida is generally not subject to levy, garnishment, or execution by creditors of one of the parties.
Tenancy by Entireties applies to many different types of assets, including but not limited to real estate, personal property, investment accounts, and bank accounts. TBE protects joint property from a creditor with a civil judgment against only one of the spouses. However, tenancy by entirety does not protect property wherein the creditor has a civil judgment against both spouses.
TBE can also be used to avoid probate. For example, if a house is owned as tenants by the entirety and one of the spouses dies, the property automatically transfers to the surviving spouse without the need of probate. This occurs since each party owns 100% of the property.
Additionally, if a single spouse attempts to deed transfer the property, the transfer may not be valid because a valid TBE transfer requires both spouses’ consent for a deed transfer.
For property to be held in tenancy by entirety, the following five unities must be present:
- Unity of Possession – joint ownership and control
- Unity of Interest – the interests in the property must be identical
- Unity of Title – the interests must have originated in the same instrument
- Unity of Time – interests must have commenced simultaneously
- Unity of Marriage – parties must be married at the time of the property became titled in their joint names
Upon the death of one spouse, property previously owned in TBE generally passes to the surviving spouse outside of probate. Tenancy by the entirety is a useful estate planning and asset protection tool in the State of Florida.