Owning Property as Husband and Wife--Tenancy by the Entireties
Florida is one of a handful of states that recognizes ownership of property in tenancy by the entireties. Tenancy by the entireties is a unique form of ownership by husband and wife. Like joint tenancy ownership, it provides a right of survivorship. If one spouse dies, ownership of the property rests in the surviving spouse. As a result, no probate is needed for entireties property after the death of one spouse.
However, unlike joint tenancy, tenancy by the entireties provides a form of asset protection from creditors. If a creditor obtains a judgment against one spouse, the lien from such judgment does not attach to property owned by both spouses as tenants by the entireties. The creditor would have to have a judgment against both husband and wife.
To create a tenancy by the entireties, property would have to be acquired by both husband and wife at the same time. It is important that they are married at the time of the acquisition. If, for example, the two persons took title to property jointly and then were married a week later, the property would not be entireties property.
If the couple takes title as tenants by the entireties and later is divorced, the property loses its entireties character and the two own it as tenants in common. This means there is no right of survivorship and, if one dies, his or her share in the property would be subject to probate. Further, if one of the owners is subject to a judgment, the lien of that judgment attaches to his or her interest in the property.
If a married couple has a joint revocable trust, it is possible to transfer entireties property into the trust and still retain the advantages of tenancy by the entireties. The trust must have a provision that allows for property within the trust to be owned as entireties property.