What is Tenancy by the Entirety in Florida?

There are three primary ways that multiple people can own a single property in Florida: joint tenancy with rights of survivorship; tenancy in common; and tenancy by the entireties.

What is tenancy by the entirety in Florida?

Tenancy by the entirety is a form of property ownership. This form of property ownership is defined as jointly owned marital property. It includes real property and personal property– tangible and intangible assets. Tenancy by the entirety means each spouse holds the entirety of the property, not a divisible part. Tenancy by the entirety has an automatic right of survivorship. A right of survivorship means that upon death of one spouse, the surviving spouse will immediately become the sole owner of the property.

Tenancy by the entirety is a form only available to married couples. An individual cannot own property in the entirety with other family members that are not the spouse.

Per the Supreme Court of Florida, there is a presumption that any property, real or personal, owned jointly by a husband and wife is owned as tenancy by the entireties. Besides this presumption, in order to qualify as a tenancy by the entirety in Florida, the property needs to meet the following six characteristics:

• Joint ownership and control, known as Unity of Possession;
• At the time the property was acquired, the joint owners must be married, known as Unity of Marriage;
• The spouse must have a corresponding and equal interest in the property, known as Unity of Interest;
• The interest in the property must have its inception at the same time, known as Unity of Time;
• The interest in the property must have its inception through the same manner, known as Unity of Title; and
• Upon death of either spouse, the surviving spouse will obtain entire ownership of the property, known as Unity of Survivorship.

A joint tenancy by the entirety cannot be established by adding a spouse or asset title to a property owned prior to marriage.

An advantage to tenancy by the entirety is that it extends greater credit protection. Because the property is owned by each spouse as a whole, creditors can only go after the assets to satisfy the spouses’ joint debt and not only one spouse’s joint debt.

Tenancy by the entirety is recognized and available in about half of all states and the District of Columbia. Some states that recognize this form of property ownership include: Delaware, Florida, Maryland, New York, Virginia, and Wyoming.

Tenants by the entirety vs. joint tenants

Tenancy by the entirety is different than joint tenancy. In joint tenancy, the ownership of the property does not have to be between married individuals or related individuals in any way.  This means that, in Florida, two unrelated people can own an apartment, home, or land together.

In joint tenancy, a creditor is able to go after one owner’s interest in the property, through an attachment or lien, to satisfy the obligation of the debt of the one owner. However, the creditor is typically not able to force the sale of the property.

A joint tenancy can add a rights of survivorship. Rights of survivorship means that upon death of one co-owner, the remaining co-owner will have sole ownership of the property.

Tenancy by the entirety vs tenancy in common

Tenancy by the entirety is different than tenancy in common. Tenancy in common is a type of property ownership where two or more people have ownership rights to property. In a tenancy in common, all parts of the property are owned equally by the owners. A tenancy in common further differs from a tenancy by the entirety because tenancy in common agreements may be entered into at any time.