Understanding Tenancies By The Entireties

When a husband or wife dies, the property of that spouse automatically transfers to the other spouse. No legal case or written document needs to exist, for that to happen. You may have known that already, but that concept is actually part of a larger doctrine in Florida (and national) law, called tenancy by the entirety, or TBE.

Whether you are a business trying to collect from someone who owes you money, or you are someone who has a collections lawsuit against you, TBE is important to understand, as it can affect how you can collect, or how you protect property someone else is trying to take.

What is TBE and What Does it Mean?

TBE says that property owned by both a husband and a wife—TBE property—cannot be taken by any creditor of just the husband or wife. It is exempt. In other words, a creditor of one spouse, can’t take property owned by both spouses to collect a debt.

TBE property can be taken, when the debt is debt that is owed by both spouses.

The natural question is what is, and what is not TBE property. Generally, the following must be present, for property to be considered TBE property:

• Both spouses must have shared or joint ownership, possession or control over the property
• Both spouses have the same interest in the property
• The property must have been owned initially at the same time by both spouses

This is if there is no written document making property TBE, such as a car title that has both parties on the title, or some other document. But since most property doesn’t have a written title, and most husbands and wives don’t put in writing that their worldly possessions are owned by both of them, the test above is often what a court looks at to see if property is TBE property

It gets even easier, as the Florida Supreme Court has already said that any property that is owned by both a husband and a wife, will be presumed—assumed from the start—to be TBE. This puts the burden on the collecting creditor to prove otherwise, to try to get to the property.

Bank Accounts and TBE

Additionally, Florida law specifically states that any bank account that has both spouses names on it, is TBE property as well. However, this will often be an individual analysis, as some paperwork that is filled out when an account is opened, may disclaim TBE or have language that could affect the account’s status as TBE property.

Stock and Business

Any stock or shares that are held by both husband and a wife, will also be assumed to be TBE property. It doesn’t matter that stock certificates may not specifically say this.

However, with an LLC, the operating agreement usually has to specifically say TBE—the assumption is not automatic, the way it is for shares in a corporation.

Question about your rights when it comes to collecting or defending against a business debt? Call the West Palm Beach business litigation attorneys at Pike & Lustig today.

Resource:

floridabar.org/the-florida-bar-journal/trusts-tbe-or-not-tbe/