Tenants by Entireties Exemption in Florida

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Tenancy By Entireties Exemption in Florida 
The Bankruptcy Code provides in section 522(b)(3)(B) in general for the exemption of property held as a tenant by the entirety or joint tenant to the extent that it is exempt from process under state law.  Tenancy by the entireties is certain property held between a husband and a wife.

Property held in a tenancy by the entireties is generally exempt from the claim of individual creditors under Florida common law but is not exempt to the extent of joint debts of both spouses or to the extent of a fraudulent conveyance into the property. Havoco of America, Ltd. v. Hill, 197 F.3d 1135 (11th Cir. 1999).

Under Florida law, property held by a husband and wife as tenants by the entireties belongs to neither individual spouse, but to a separate entity referred to as the "unity" or "the marriage." Florida law recognizes that entireties estates can exist in both real and personal property. Property held as tenancy by the entireties generally possesses six characteristics: 1. unity of joint ownership and control (unity of possession), 2. unity of interest, 3. the interests must have originated in the same instrument (unity of title), 4. the interests must have commenced simultaneously (unity of time) 5. survivorship, and 6. the parties must be married at the time they took joint title (unity of marriage).

Florida law provides that real property held by a husband and wife in joint names is held in a tenancy by the entireties absent some express indication to the contrary. Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 (Fla. 2001). Florida law also provides a presumption that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the unities of possession, interest, title, and time are met. Various court decisions extend the presumption in favor of a tenancy by the entireties to personal property in various manners. Some courts extend the presumption to all personal property.

The Court in In re Kossow, Case No. 03-27115-BKC-PGH (S.D. Fla. 2007)(Hyman, J.) allowed the tenancy by the entireties exemption of certain household furnishings acquired during the marriage as there was no evidence to rebut the presumption. The Court also allowed the tenancy by the entireties exemption of other household furnished acquired prior to the marriage as it found that it was subsequently assigned to the marriage. The Court further found the joint federal income tax refund as exempt tenancy by the entireties property.

The case of In re Schwarz, III, Case No. 06-13348-BKC-JKO (S.D. Fla. 2006)(Olson, J.) illustrates that a debtor may be able to exempt property held as tenants by the the entireties even though he is required to claim another state's exemptions and not able to utilize the Florida homestead exemption.(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications