Florida Tenancy by the Entirety

A Florida “tenancy by the entirety” (also called “tenancy by the entireties” or “estate by entirety”) is a special form of joint ownership that is available only to a married couple.  You may not hold property as tenants by the entirety with anyone other than your spouse.

Note:  Florida does not currently recognize marriages of same-sex couples, so it is not possible for these couples to hold property as tenants by the entirety in Florida.

A deed or other conveyance to a husband and wife will be presumed to create a tenancy by the entirety by default, unless some other intent is shown. Unlike some states, which only allow tenancy by the entirety for real estate, Florida law allows any property to be held as tenancy by the entirety.  For example, in Florida, bank accounts in the name of a husband and wife are considered, by default, to be held as a tenancy by the entirety, unless otherwise specified in writing.

Holding property as tenants by the entirety has several important consequences under Florida law.

Avoiding Probate

Like a joint tenancy with right of survivorship, a tenancy by the entirety is often used to avoid probate of jointly owned property. Property owned as tenancy by the entirety passes automatically to the surviving spouse upon the death of the first spouse to die. There is no need to deal with the property in probate. See Using Deeds to Avoid Probate of Real Estate in Florida for more information.

Restraints on Transfer of Property

If real estate is held in tenancy by the entirety, the signature of both spouses is required to sell the property.  A sale contract or deed by only one spouse has no effect.  Similarly, both spouses are required to mortgage or otherwise pledge tenancy the entirety real estate as security.

Creditor Protection

Property held as tenants by the entirety is unavailable to the creditors of one spouse who obtain a judgment against him or her.  This means that if you are sued individually, any judgment against you cannot be satisfied by reaching any property, including your house, which you hold as tenants by the entirety with your spouse.

Homestead Implications

Florida’s complicated rules governing the handling of homestead property after one spouse’s death do not apply to property owned in tenancy by the entirety.  This is so even if the surviving spouse disclaims the property when it passes to him or her.

Elective Share

Property owned in tenancy by the entirety is not counted toward a spouse’s elective share.

Disposal by Power of Attorney

Where one spouse is in the U.S. Armed Forces, property owned in tenancy by the entirety may not be disposed of pursuant to a power of attorney until one year after the spouse is deemed missing or missing in action.