If Debtor Adds Spouse to Bank Account, Is it Protected as Tenancy by Entirety?

No, it is not protected and the account could be subject to garnishment and the funds reached by the creditor for the portion owned by the debtor.

Let’s say you obtained a judgment against a debtor. You garnished their bank account, but the account is jointly titled in both the husband and wife’s name. It appears to be a tenancy by the entirety account, which is protected under Florida law from creditors who only have a judgment against one of the spouses.

However, you find out that the husband added on his wife to the same account at a later time, presumably to protect the account from his creditors and thinking it would now be protected.

Here is how to attack the account.

In order to be protected as a tenancy by the entirety account, Florida requires the account to have the following characteristics of form:

1. unity of possession (joint ownership and control);
2. unity of interest (the interest must be the same);
3. unity of title (the interest must originate in the same instrument);
4. unity of time (the interest must commence simultaneously);
5. the surviving spouse will own the property after either spouse dies;
6. the unity of marriage.

You would want to attack the “unity of time”  requirement since one spouse’s interest was created after the other spouse’s by adding them on later to the account or signature card.  I also have cases fully supporting this argument:

• Essentially, the Supreme Court of Florida affirmed that a tenants by the entirety account could not be created by adding the spouse’s name to an existing account. See Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45, 63 (Fla. 2001) (“We do not address the Merrill Lynch account established by Almand III, which was later amended to include the name of his wife as a co-owner. The Fifth District unanimously held that this account was subject to garnishment.”)
• In the case of In re Aranda, 2011 WL 87237 (Bankr. S.D. Fla. 2011), the court held that the relevant point in time for establishing the unities for tenants by the entirety ownership is when an account is opened. The subsequent addition of the spouse to the account was not sufficient to satisfy the unity of time.
• A viable tenancy by the entirety, with regard to either realty or personalty, must possess always and at the same time the unities of form.  Miller v. Rosenthal, 510 So. 2d 1127, 1128 (Fla. 2nd DCA 1987).

The courts look at the account when it was initially opened to see if it complies with the characteristics of form required to be a tenancy by the entirety account.

In conclusion, a tenancy by the entirety account cannot be created by adding another spouse to the account at a later time since the unity of time requirement is not met. Some or all of the funds can be reached by the creditor.