How Tenancy by the Entirety Protects Real Estate in Florida

Real estate held as tenants by the entirety is shielded from creditors of either spouse individually. A creditor with a judgment against only one spouse cannot record a lien against the property, force a sale, or attach that spouse’s interest. The protection applies to every category of real property, including a married couple’s home, rental property, vacant land, and commercial building.

Many Florida property owners assume that only their homestead receives creditor protection, but the entireties doctrine provides a separate and independent layer that extends to every parcel of real estate a married couple owns together. A rental property that does not qualify for homestead receives the same entireties immunity as the family home, as long as the title is properly structured.

How Florida Creates Tenancy by the Entirety in a Deed

Florida law presumes that any real property conveyed to a married couple is held as tenants by the entirety. The presumption is a century-old rule of Florida common law, restated by the Florida Supreme Court in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). It applies unless the deed expressly creates a different form of ownership. A deed to “John Smith and Jane Smith” creates a tenancy by the entirety if they are married when they take title, even without language specifying “husband and wife” or “tenants by the entirety.”

Best practice is still to include explicit entireties language in every deed. Name both spouses followed by “husband and wife, as tenants by the entirety.” This eliminates ambiguity, especially when the spouses have different last names or the recording county does not independently verify marital status. Recording a deed that names the spouses as “tenants in common” or “joint tenants with right of survivorship” destroys the entireties presumption.

Adding a Spouse to an Existing Deed

Before Section 689.11 was amended, adding a spouse to real estate required a straw man transaction. The owning spouse would convey the property to a third party, and that third party would immediately reconvey it to both spouses as tenants by the entirety. The workaround existed because it was doubtful that the common law unities of time and title could be satisfied when one spouse already owned the property.

Section 689.11 eliminated this requirement for real property. The statute now allows the spouse holding title to convey directly to the other spouse through a deed stating the purpose to create entireties ownership. A husband who owns property solely can execute a single deed conveying the property to himself and his wife as tenants by the entirety, without involving any third party.

Two details about this process frequently cause problems. First, the deed must convey the entire interest, not a half interest. A deed transferring “an undivided one-half interest” to the other spouse creates a tenancy in common. Conveying a fractional interest instead of the whole property is the most common deed error that destroys entireties protection.

Second, if the property is homestead, the Florida Constitution does not require both spouses to sign a deed that conveys to the other spouse. Article X, Section 4(c) permits a married person to convey homestead property to his or her spouse, creating an exception to the general rule that both spouses must join in any homestead conveyance.

Fraudulent Transfer Risk When Adding a Spouse

Adding a spouse to a deed can trigger fraudulent transfer scrutiny under Florida’s Uniform Fraudulent Transfer Act. If the owning spouse is insolvent at the time of the transfer, or if the transfer is made to defeat an existing creditor, a court can unwind the conveyance and strip the entireties protection that would otherwise attach.

The practical precaution is to execute a financial affidavit confirming solvency before re-titling real property as tenants by the entirety. The affidavit documents that the transferring spouse’s remaining assets exceed existing debts after the transfer, which undercuts a creditor’s later claim that the conveyance was fraudulent.

The earlier the transfer occurs before any creditor claim, the harder it is for a creditor to challenge. A spouse who adds the other spouse to a deed years before any liability arises faces virtually no risk. A spouse who adds the other spouse after receiving a demand letter is more vulnerable to a fraudulent transfer claim.

Homestead and Tenancy by the Entirety

Florida’s homestead exemption protects a primary residence from forced sale by creditors, with no limit on value. The size limits are half an acre within a municipality or 160 acres outside one. Tenancy by the entirety is a separate, common-law protection based on how the property is titled rather than how it is used.

When both protections apply to the same property, the homestead is the primary layer and the entireties ownership is the backup. Each protection has weaknesses that the other covers.

Homestead protection can be lost if the property ceases to be the owner’s primary residence, if the owner rents the property for more than a brief period, or if the property exceeds the constitutional size limits. If any of these events occurs, the entireties protection remains in place as long as the couple remains married and the title is correct. Conversely, entireties protection ends upon divorce or the death of one spouse, but the homestead exemption continues for the surviving spouse or the divorced owner who remains in the residence.

The strongest position for a married couple’s primary residence is to hold title as tenants by the entirety with homestead status confirmed. Entireties ownership blocks individual creditors. Homestead blocks all creditors except mortgage holders, tax authorities, and mechanics’ lien holders. The entireties title also carries a right of survivorship that avoids probate.

Investment and Rental Property

Investment real estate does not qualify for homestead protection because the owner does not use it as a primary residence. Tenancy by the entirety is the sole creditor protection available for rental properties, vacation homes, and commercial real estate that a married couple owns together.

The protection works the same way it does for homestead-eligible property. A creditor with a judgment against only one spouse cannot lien, attach, or force the sale of investment real estate held as tenants by the entirety. Section 689.11 applies to both homestead and non-homestead property, so the same creation and deed requirements apply.

Investment property carries additional liability exposure that homestead property does not. A tenant who slips and falls on a rental property can sue both spouses as property owners. If the court enters a joint judgment against both spouses, the entireties protection does not apply because the debt is joint rather than individual.

For this reason, holding investment real estate inside an LLC rather than in the couple’s personal names is often the better structure. The LLC provides a liability shield between the property and the couple’s other assets, while the LLC membership interest itself can be held as tenants by the entirety for additional protection.

Multi-Owner Deeds

When a married couple purchases property with a third party, the deed language must be precise to preserve entireties protection. Florida law treats the married couple as a single unit for purposes of tenancy by the entirety, so the couple’s combined interest is treated as one share.

Parents often buy an investment property with an adult child. If the deed names all three individuals without specifying ownership shares, the husband and wife hold a one-half interest as tenants by the entirety, and the child holds a one-half interest as a tenant in common. The couple’s half is protected from individual creditors of either spouse. The child’s half is fully exposed to the child’s creditors and is subject to partition.

The deed should state the intended allocation explicitly. The couple’s share is identified as “tenants by the entirety as to an undivided one-half interest,” with the third party named separately as tenant in common. This preserves the entireties character while clarifying the co-ownership arrangement.

Foreclosure and the Loss of Entireties Protection

When real estate held as tenants by the entirety is subject to a mortgage that both spouses signed, the mortgage lender is a joint creditor with the right to foreclose. If the property is sold at a foreclosure auction, the question is whether any surplus funds remaining after the mortgage and costs are paid retain their entireties character.

The Third District Court of Appeal addressed this in Grossfeld v. Security National Mortgage Co., No. 3D23-600 (Fla. 3d DCA 2024). A junior lender held a mortgage the husband alone had signed. That lender took the surplus, up to its debt, because the foreclosure sale severed the unities required for entireties ownership and the lender’s lien then attached to the proceeds. The court did not divide the surplus between the spouses or award any share to an ordinary judgment creditor.

The Grossfeld decision does not strip entireties protection from every forced sale. It shows that a mortgage one spouse signs alone becomes a lien when a foreclosure severs the unities. A junior mortgage one spouse signs alone can reach the foreclosure surplus.

The general rule runs the other way. Proceeds from selling entireties property keep their entireties character. In Passalino v. Protective Group Securities, Inc., 886 So. 2d 295 (Fla. 4th DCA 2004), sale proceeds in the couple’s attorney’s trust account stayed entireties property because the spouses kept beneficial ownership and control of the money. The trial court dissolved a garnishment that one spouse’s creditor had obtained against the trust account, and the Fourth District affirmed. The difference in Grossfeld was the junior mortgage, which attached to the surplus once the foreclosure severed the entireties ownership.

Unilateral Conveyance by One Spouse

Neither spouse can convey or encumber entireties real estate without the other spouse’s consent. A transfer that one spouse signs alone does not defeat the other spouse’s ownership or the right of survivorship. This non-severability doctrine keeps a creditor from coercing a debtor spouse into transferring property unilaterally.

The Third District applied the doctrine in Wallace v. Torres-Rodriguez, 341 So. 3d 374 (Fla. 3d DCA 2022). A husband had secretly given a third party millions in entireties assets. The court held that a constructive trust was the proper remedy and ordered the recipient to return everything, condominiums included. The husband had no legal right to make the gifts, and the recipient had no right to keep them.

For homestead property, this protection is constitutional. Article X, Section 4 requires both spouses to join in any mortgage, lien, or conveyance affecting homestead, regardless of how the property is titled. For non-homestead property, the protection comes from the entireties ownership alone.

IRS Liens and Federal Creditors

The IRS is the primary exception to entireties protection for real estate. Under United States v. Craft, 535 U.S. 274 (2002), the Supreme Court held that a federal tax lien can attach to one spouse’s interest in entireties property. Once the lien attaches, the IRS can ask a federal court to order a sale of the entire property, with the non-debtor spouse compensated from the proceeds. No ordinary creditor with a judgment against one spouse has that remedy.

The Department of Justice can also reach entireties property, but only through criminal forfeiture or an order of criminal restitution. Florida state court creditors cannot reach entireties property with an individual judgment, but federal creditors operate under a different set of rules.

What Happens to TBE Real Estate at Divorce or Death?

Entireties protection does not survive the end of a marriage. When a married couple divorces, Florida Statute § 689.15 converts the tenancy by the entirety into a tenancy in common. Each former spouse owns an undivided half interest, and that half interest is fully exposed to his or her individual creditors. The creditor protection disappears the moment the divorce decree becomes effective.

Death creates a different risk. When one spouse dies, the surviving spouse automatically becomes the sole owner of the property by right of survivorship. The property is no longer held by two people, so the entireties character terminates. A creditor of the surviving spouse can now reach the property. A creditor of the deceased spouse alone gets nothing. A judgment against one spouse never became a lien during the marriage, and the survivor takes the property free of the deceased spouse’s individual debts.

For couples who want to address the death-of-spouse exposure, the options include moving valuable real estate into an irrevocable trust or pairing entireties ownership with other planning structures. A revocable living trust carries its own risk. Whether property transferred to a trust retains its entireties character remains unsettled.

Non-Residents and Florida Real Estate

Florida’s tenancy by the entirety protection applies to real property located in Florida regardless of where the owners live. A married couple domiciled in Georgia, New York, or any other state can hold Florida real estate as tenants by the entirety and receive the same creditor protection as Florida residents.

The Bankruptcy Court for the Middle District of Florida confirmed this principle in In re Cauley, 374 B.R. 311 (Bankr. M.D. Fla. 2007). The court held that entireties ownership is a creature of Florida common law rather than a statutory exemption, so Florida’s opt-out statute does not bar a non-resident from claiming Florida real property exempt as entireties in bankruptcy.

This makes Florida real estate an attractive option for out-of-state married couples seeking creditor protection, even when their home state does not recognize the entireties doctrine. Twenty-four states and the District of Columbia recognize some form of entireties ownership, and only about half extend it to personal property the way Florida does.

Deed Mistakes That Destroy Protection

Failing to update deeds after marriage is one of the most common problems. If one spouse owned property before the marriage and never added the other spouse to the title, the property is individually owned with no entireties protection. A direct conveyance to both spouses under Section 689.11 provides a straightforward fix.

Recording a deed that names the spouses as “tenants in common” or “joint tenants with right of survivorship” overrides the entireties presumption. Even checking a box for JTWROS instead of TBE at closing can strip the protection. Correcting these errors typically requires a new deed from both spouses to themselves as tenants by the entirety.

Transferring entireties property into a revocable living trust may sever the entireties ownership. Florida law leaves the question open. The risk depends on how the trust is structured and how the deed is drafted. Couples who want both trust-based estate planning and entireties creditor protection should address the structuring question before executing the transfer.

Tenancy by the entirety is the strongest free creditor protection available to married couples who own Florida real estate, but the protection depends on getting the title right.