Tenancy by the entireties for married couples in Florida

Section 01What TBE is, and who can use it

Tenancy by the entireties is a special form of co-ownership that only married spouses can hold. The simplest way to understand it is as a joint tenancy plus marriage. A joint tenancy needs four unities, possession, title, time, and interest; a tenancy by the entireties needs those four plus two more, the unity of survivorship and the unity of marriage. The spouses must be legally married at the time they take title.

Like a joint tenancy, a tenancy by the entireties carries the right of survivorship: when one spouse dies, the property passes automatically to the surviving spouse, with no ancillary probate. That alone makes it one of the standard ways for a married Canadian couple to keep a Florida home out of a Florida court proceeding. But its real advantage over an ordinary joint tenancy, the reason a couple should prefer it, is the creditor protection that comes with the marital unity, which the next section explains.

Section 02The creditor protection and how it works

The headline benefit of tenancy by the entireties is protection from the creditors of one spouse. A judgment creditor of one spouse alone cannot seize, place a lien on, or foreclose a property held by the entireties. Only a creditor of both spouses jointly can reach it.

The mechanism is what makes this work, and it is worth understanding rather than memorizing. In a tenancy by the entireties, neither spouse owns a separate, individual interest. The spouses own the whole property together, as a single legal unit, the marital unit. Because there is no individual share belonging to one spouse, there is nothing for that spouse's individual creditor to attach. The creditor cannot take what does not exist as a separate interest. This is fundamentally different from a joint tenancy, where each owner does have an individual interest that a creditor can reach and force to be sold.

For a married Canadian couple buying in Florida, this protection is the decisive reason to choose tenancy by the entireties over a plain joint tenancy. Both give the same survivorship that avoids probate, but only the entireties shields the home if a creditor pursues one spouse.

Section 03The presumptions for real estate and accounts

Florida does not just allow tenancy by the entireties, it presumes it in the common cases, which works in a married couple's favour. For real estate acquired jointly by a married couple, Florida presumes the property is held by the entireties, under the Florida Supreme Court's decision in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). A couple does not have to use magic words on the deed to get the protection for their home; the presumption does the work.

For bank accounts, the presumption is statutory. Under Florida Statutes 655.79, a bank account held by a married couple is presumed to be a tenancy by the entireties unless the account documents state otherwise in writing. So a joint chequing or investment account opened by spouses generally enjoys the same protection as the home, again without special wording, unless the couple signed something opting out.

These presumptions are valuable, but they are presumptions, not guarantees: documentation that says otherwise, or a holding that does not meet the conditions, can rebut them. A couple that wants to be sure should confirm the deed and the account titling with a Florida attorney rather than relying on the presumption alone.

Section 04The two exceptions

The protection is strong but not absolute, and a couple should know the two ways through it. The first is a creditor of both spouses together. If a creditor holds a judgment against the spouses jointly, against both of them, the marital-unit logic no longer shields the property, and the creditor can reach it. The protection is specifically against a creditor of one spouse, not a debt the couple took on together.

The second exception is the IRS. A federal tax lien for the tax debt of one spouse attaches to that spouse's interest in property held by the entireties, despite the state-law protection, under the United States Supreme Court decision in United States v. Craft, 535 U.S. 274 (2002). The Court held that a federal tax lien reaches the taxpayer spouse's rights in entireties property even though Florida-style law would otherwise shield it. In practical terms, the IRS is the one creditor that pierces a tenancy by the entireties, so a couple cannot rely on the entireties to defeat a federal tax debt.

Section 05Divorce ends the tenancy by the entireties

The marriage unity is not just a condition at the start; it has to continue. When a married couple divorces, the unity of marriage is gone, and with it the tenancy by the entireties. The former spouses do not keep entireties ownership; they become tenants in common, each holding a separate, individual share.

That shift undoes both benefits at once. The creditor protection ends, because each ex-spouse now owns a reachable individual interest. And the survivorship ends, because a tenancy in common has none, so when one former spouse later dies, their share passes through their estate, which for a Florida property means ancillary probate. A couple that holds a Florida home by the entireties should revisit the title after a divorce, because the protection and the probate avoidance they were counting on no longer apply.

Section 06No unilateral severance

One of the practical strengths of tenancy by the entireties is that it cannot be undone by one spouse alone. In a joint tenancy, any owner can sever the arrangement unilaterally by transferring their share, ending the survivorship for it. In a tenancy by the entireties, that is not possible: because the spouses own the whole as a unit, one spouse cannot transfer, mortgage, or otherwise dispose of the property without the other joining in.

This is a feature, not a limitation. It protects each spouse from the other acting alone, whether by selling the home out from under them or by pledging it to a lender. It also means the survivorship the couple set up cannot be quietly dismantled by one of them. The trade-off is that any dealing with the property, a sale, a refinance, requires both spouses to sign, which is exactly what makes the protection work.

Section 07The 2025 Loumpos ruling on accounts

A recent decision strengthened the account presumption. On December 11, 2025, in Loumpos v. Bank One, the Florida Supreme Court held that a joint bank account held by spouses can qualify as a tenancy by the entireties, and enjoy the full creditor protection, even if the account was originally opened by only one spouse. The ruling relaxed how strictly the unities of time and title are applied to bank accounts: the fact that one spouse opened the account first did not, by itself, defeat entireties treatment once it became a spousal joint account.

The practical effect is that a spousal joint account is harder for a creditor of one spouse to attack on the technical ground that one spouse set it up first. This is a recent and specific holding, and its reach should be read narrowly: it concerns joint bank accounts and the time and title unities for them, and a couple relying on it for a particular account should confirm the current law with a Florida attorney rather than assume it extends further.

Section 08Entireties versus joint tenancy for a couple

The two forms share the survivorship that avoids probate, but only one adds protection. The table sets the three co-ownership forms side by side.

The common and costly trap appears on account and title forms that offer both "joint tenancy with right of survivorship" and "tenancy by the entireties" as choices. A married couple that checks joint tenancy, perhaps because it is listed first or sounds familiar, gives up the entireties creditor protection while gaining nothing in return, since the survivorship is the same. For a married couple in Florida, the right choice is almost always tenancy by the entireties. Our joint tenancy guide covers the form for co-owners who are not married, for whom the entireties is not available.

Section 09Avoids probate, not US estate tax

As with every probate-avoidance tool, the point a Canadian must keep separate is the tax. Tenancy by the entireties solves how the property passes, automatically to the survivor, without a Florida court proceeding. It does nothing about US estate tax, which turns on what the deceased owned, not on how the title passes.

A Florida property held by the entireties remains a US-situs asset for US estate tax purposes, so it stays inside the US estate even though it skips probate. Whether any tax is actually owed depends on the USD 60,000 threshold, the treaty credit, and the marital relief, all of which are set out in our US nonresident estate tax guide. The lesson is the same one that applies to joint tenancy and trusts alike: avoiding probate and avoiding estate tax are two separate jobs, and a couple should plan for both.

Section 10Common mistakes

Checking joint tenancy instead of tenancy by the entireties. On a form that offers both, a married couple that picks joint tenancy gives up the creditor protection for no gain, since the survivorship is identical. Choose the entireties.

Believing the entireties is creditor-proof. It protects against a creditor of one spouse, but not against a creditor of both spouses jointly, and not against the IRS under United States v. Craft. A couple should not treat it as a shield against a joint debt or a federal tax lien.

Forgetting that divorce ends it. Divorce turns the entireties into a tenancy in common, removing both the protection and the survivorship. A couple should revisit how they hold the Florida home after a divorce.

Assuming that avoiding probate avoids US estate tax. The Florida property is still US-situs for US estate tax. Skipping probate does not remove it from the US estate.

Section 11Checklist

• If you are legally married, prefer tenancy by the entireties over a plain joint tenancy for the Florida home.
• On any account or title form that offers both, choose the entireties, not joint tenancy.
• Rely on the presumptions for marital real estate and spousal accounts, but confirm the titling with a Florida attorney.
• Remember the two exceptions: a creditor of both spouses jointly, and the IRS under United States v. Craft.
• If you divorce, revisit the title, because the entireties ends and becomes a tenancy in common.
• Account for US estate tax separately: the property is still US-situs even though it avoids probate.
• Have a Florida attorney confirm the title and a cross-border tax professional review the tax side.

Section 12FAQ

Are we protected from a creditor of just one spouse? Yes, with two exceptions. A creditor of one spouse alone cannot reach a property held by the entireties. The exceptions are a creditor of both spouses jointly, and the IRS, whose federal tax lien attaches under United States v. Craft.

What happens to the entireties on divorce? It ends. The former spouses become tenants in common, losing both the creditor protection and the survivorship, so a deceased ex-spouse's share then goes through probate.

Can one spouse sell or mortgage the property alone? No. A tenancy by the entireties cannot be severed by one spouse acting alone; both spouses must join in any sale or encumbrance. That bar is itself part of the protection.

Does it avoid US estate tax? No. The Florida property is still US-situs for US estate tax, so it stays in the US estate even though it avoids probate. See our US nonresident estate tax guide.

We are not married. Can we use it? No. Tenancy by the entireties is for legally married spouses only. Unmarried co-owners use joint tenancy with right of survivorship, or a revocable living trust or Lady Bird deed. The probate proceeding these tools avoid is explained in our Florida ancillary probate guide, and the Canadian estate in our probate fees guide.