U.S. Appellate Court Advances Tenancy by Entireties Law

A recent U.S. appellate court decision advanced the law regarding tenants by entireties bank accounts. A Florida statute that makes all joint marital checking accounts entireties accounts unless otherwise specified in writing. In an appeal of a lower court bankruptcy decision, the appellate court in In re Del Amo said that the presumption of tenants by entireties ownership of joint bank accounts can be overcome only by an express written disclaimer and not by a description of the account.

In this case, a married couple opened a joint checking account at TD Bank. Their signature card did not offer a tenants by entireties option. The signature card included a provision that “joint accounts are owned as joint tenants with right of survivorship.” The creditor argued that the statement on the signature card describing the joint account constituted a written waiver of entireties ownership sufficient to overcome the statutory presumption in favor of entireties ownership.

The appellate court disagreed, finding that the statutory presumption of entireties ownership can be overcome only by a specific and express disclaimer. The bank’s description of the account did not constitute a sufficient disclaimer or waiver of the entireties presumption.

TD Bank is not the only bank that, on a signature card, in the customer agreement, or in a welcome brochure, describes marital accounts as joint accounts with survivorship.

This court did not directly address whether the married couple’s acceptance of the bank’s terms and conditions constitutes a contractual agreement that the joint accounts are not entireties accounts.

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Jon Alper is a nationally recognized expert in asset protection planning. He is considered one of the leading authorities in Florida asset protection and offshore trust formation. He graduated with honors from the University of Florida Law School, holds a masters degree from Harvard University, and has practiced law for over 50 years.

Jon and the Alper Law firm have advised thousands of clients about how to protect their assets from creditors. He focuses on practical solutions that have been tested in real-world scenarios.