Tenancy By Entireties Protection of Property Outside of Florida

A husband and wife own an investment real property in Florida as joint tenants with rights of survivorship and a vacation home in Tennessee also titled as husband and wife, tenants with survivorship. Both spouses are Florida residents. Florida law, generally, is that all property owned by married couples as joint tenants with rights of survivorship are presumed to be owned by the entireties. Entireties property is immune from the individual creditors of either spouse. The married couple they presumed both properties are protected from a judgment against the husband only. I advised them that the Florida property is protected, but that the creditor can force the sale of the Tennessee vacation home and claim 50% of the net sale proceeds.

The exemption law applicable to real property are the law of the state where the real property is located regardless of the residence of the debtor who owns the property. In this instance, the Florida property’s exemption is under Florida law and the Tennessee property’s exemption is under Tennessee law. When I researched Tennessee law I found their law on entireties much different than Florida. There are cases in Tennessee which hold that a conveyance of real property to husband and wife is presumed to be owned by the entireties unless there is contrary evidence of intent on the instrument itself. Applied to this example, a deed to husband and wife expressly as joint tenants would defeat the entireties presumption in Tennessee. I also saw Tennessee case which said that state that entireties ownership consist of two distinct interests: a present right of possession and a separate survivorship interest. The right of possession is protected from creditors whereas the creditor can levy on the survivorship right.

I am not qualified to interpret Tennessee law, especially as to complex issues like tenancy by entireties presumptions. The point is that if a Florida debtor owns real property in other states he should consult an attorney in the state where to property is situation to determine its protection from creditors. Do not assume that just because you are a Florida resident you can transport Florida’s asset protection laws to other states where you may own an interest in real property.

posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida