Signature Card Trumps Unities Of Title In Florida Dispute Over Tenants By The Entireties Account

In Versace v. Uruven LLC, an October 12, 2022 opinion, the Florida Fourth District Court of Appeal followed established Florida law that all spousal bank accounts are considered as held as tenants by the entireties unless otherwise specified in writing, and thus are out of reach of creditors of one spouse in most situations.

The Facts of Versace v. Uruven LLC

Appellee obtained a judgment against appellant and secured the issuance of a writ of garnishment against Bank of America, claiming that appellant had accounts with the bank. The bank answered that it had three accounts in appellant’s name, among others, including an account in the name of appellant and his wife. The bank set aside the monies in the account in appellant’s and his wife’s name subject to the writ.

Appellant filed a claim of exemption and motion to dissolve the writ as to that account, claiming that the account was held as tenants by the entireties. Appellee responded that the account did not meet the six unities of title necessary to be a tenancy by the entireties account. Specifically, appellee asserted the account lacked the unity of time, because the account was originally opened by the wife alone. Not until a few years later did appellant and the wife sign a new signature card, which expressly stated that the account was held as tenants by the entireties.

The court held a hearing and then granted the writ of garnishment as to all accounts, thus rejecting appellant’s claim of exemption for the account designated by the signature card to be held by appellant and the wife as tenants by the entireties. Appellant appealed this order.

A Bank Account Held As Tenants By the Entireties Cannot Be Garnished By a Creditor Of One Spouse

The type of account held by a husband and wife determines whether it can be garnished by a creditor of either. Because a tenancy by the entirety belongs to neither party, but “each spouse is seized of the whole,” see Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 (Fla. 2001), it cannot be garnished by a creditor of one spouse.

However, in a joint tenancy with right of survivorship each party owns his or her separate share of the property such that a creditor of one joint owner may attach that owner’s share of the account to satisfy that owner’s debt. Id.

Two Rules Established By the Florida Supreme Court In Beal Bank

There are two basic rules that the Florida Supreme Court decision of Beal Bank established with respect to accounts held by spouses.

Rule One: Tenants By the Entireties Ownership Presumed

First,

[A]s between the debtor and a third-party creditor (other than the financial institution into which the deposits have been made), if the signature card of the account does not expressly disclaim the tenancy by the entireties form of ownership, a presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship. The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created.

Rule Two: Signature Card Controls

Second, with respect to an express designation on a signature card that the account is held as a tenancy by the entirety:

Although we recede from Hector Supply Co., we agree with the statement in Hector Supply Co. that an express designation on the signature card that the account is held as a tenancy by the entireties ends the inquiry as to the form of ownership. Hector Supply Co., 254 So. 2d at 781. Following Hector Supply Co., other courts have excluded extrinsic evidence where the account documents clearly indicated the legal form of ownership. See Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436, 437 (Fla. 4th DCA 1999) (holding that extrinsic evidence is inappropriate when both husband and wife signed the signature card, which specifically and clearly designated the account as one held as tenants by the entireties); Sheeler v. United States Bank of Seminole, 283 So. 2d 566, 566 (Fla. 4th DCA 1973) (holding no further inquiry necessary where clear from the terms of the bank signature card that an estate by the entireties was expressly created).

Florida Statute Section 655.79: Tenants By The Entireties Presumed

In a footnote in Beal Bank, the court suggested to the Legislature that it enact a statutory presumption of tenancy by the entirety in bank accounts held in the name of two spouses. 780 So. 2d at 62 n.24. The Legislature did more than that in in 2008 by amending section 655.79(1), Florida Statutes, to provide:

“Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” Thus, consistent with Beal Bank, an express designation of an account as a tenancy by the entireties would create a tenancy by the entireties as a matter of statutory law, regardless of the presence or absence of the common law requirements of unities.

Thus, the court made a clear distinction between accounts which state expressly they are held as tenants by the entirety and ones that do not, and only those that do not have an express designation require an examination of the unities in the formation of the account. Of course, section 655.79(1) now eliminates even that showing, as all spousal bank accounts are considered as held by tenancies by the entireties unless otherwise specified in writing.

The Florida appellate court reversed the trial court, stating:

We agree with appellant that Beal Bank controls. Beal Bank held that where a bank signature card expressly designates the account as held as tenants by the entireties between husband and wife, this “ends the inquiry as to the form of ownership.” 780 So. 2d at 60. Thus, appellant and his wife’s account held expressly as tenants by the entireties is not subject to garnishment for the judgment against appellant. We reverse.

To read more about tenancy by the entireties ownership and issues that can arise, read:

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