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.
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The Havoco case reviewed that 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.Tenants by the Entireties
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:
- unity of possession - unity of joint ownership and control
- unity of interest,
- unity of title - the interests must have originated in the same
- unity of time - the interests must have commenced simultaneously
- survivorship
- unity of marriage - the parties must be married at the time they took joint title (unity of marriage).
Tenants by the Entireties and Real Estate
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.
Tenants by the Entireties and Personal Property
Household furnishing acquired during a marriage may also be found to be held in tenancy by the entireties. In the In re Kossow case, the Court 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.
