In Florida, married couples have the right to own property under tenancy by the entirety. This form of ownership is exclusive to married individuals, providing non-statutory protection against creditors.
In this article, you will discover what tenancy by the entirety is and why married couples should hold the title of property using this form of ownership.
How Should Married Couples Hold Title in Florida? – Understanding Tenancy by the Entirety
While not provided by a specific statutory rule in Florida law, tenancy by the entirety is a valuable legal tool for married couples for asset protection, probate avoidance, and expedited ownership succession.
Under tenancy by the entirety, both spouses own an undivided interest in a property. If one of the spouses dies, the surviving spouse automatically holds the legal title to the entire property.
In this form of ownership, the couple is seen as one single entity who owns an equal 100% interest in the property. It is different than other forms of joint ownership in which two people share an equal interest in a property while owning different shares (e.g., 50% interest in the property.).
Tenancy by the Entirety vs. Asset Protection
As provided by Florida law, any property owned under tenancy by the entirety has protection against judgments from creditors of either of the individual spouses. Hence, the claim affects only one of the married owners while protecting the other spouse and the property itself against creditors’ claims.
Please note that if both spouses owe a joint debt to the same creditor, the joint creditor may obtain a judgment to involuntarily seize the debtors’ property – even if it is held under tenancy by the entirety.
However, separate judgments obtained by one creditor based on different reasons against each tenant may not be considered a joint judgment against the couple.
Is Tenancy by the Entirety Exclusive to Florida Residents?
Tenancy by the entirety is part of Florida common law, which requires a married couple to reside within state jurisdiction to enjoy the benefits of this unique form of ownership.
Once married individuals become Florida residents, they can hold jointly owned assets under tenancy by the entirety. It is not unusual to find out-of-state residents who move down to Florida to seize advantage of tenancy by the entirety.
Please note that state law is not settled to determine whether non-Florida residents may own real estate within state jurisdiction as tenants by the entireties.
The most common opinion among local lawyers is that a state court would still protect property held by non-Florida residents under tenancy by the entirety. Conversely, out-of-state courts may not apply the same logic, which requires an individual assessment of each case.
Tenancy by the Entirety vs. Homestead Protection
Florida law permits married couples to combine the benefits of tenancy by the entirety and homestead protection. The language used to deed the property must expressly appoint both spouses as owners of the property, followed by “husband and wife.”
If a homestead property is deeded using this specific language, the homestead is held under tenancy by the entirety. In case the couple loses homestead creditor protection, it is possible to use tenancy by the entirety as a “back-up” to protect the property.