15.3.5 Tenancy by the Entireties in Personal Property

230 DISTRICT OF COLUMBIA: Morrison v. Potter, 764 A.2d 234 (D.C. 2000) (married couples’ joint checking accounts presumed to be held in tenancy by entireties; standard joint tenancy language in account agreement does not rebut presumption); Roberts & Lloyd, Inc. v. Zyblut, 691 A.2d 635 (D.C. 1997) (property owned by married couple, here brokerage accounts, presumed to be owned in tenancy by entirety, even if words of conveyance would have created ordinary joint tenancy).

DELAWARE: In re Scioli, 2013 WL 318718 (Bankr. D. Del. Jan. 18, 2013) (Delaware recognizes tenancy by the entireties (TBE) in personal property; household goods, property titled in both spouses’ names, and property directly derivative of TBE property—for example, purchased with funds from joint account—are rebuttably presumed to be owned in TBE, but car titled in husband alone and purchased with funds from his business account not owned in TBE), aff’d, 586 Fed. Appx. 615 (3d Cir. 2014).

FLORIDA: In re Sinnreich, 391 F.3d 1295 (11th Cir. 2004) (Fla. law) (real and personal property held in tenancy by entireties with non-debtor spouse is exempt); Branch Banking and Tr. Co. v. Maxwell, 2012 WL 4078407 (M.D. Fla. Aug. 4, 2012) (settlement check, for action arising from installation of defective materials in marital home, was owned in tenancy by the entireties (TBE), even after deposit in bank account that may not have been TBE), adopted by 2012 WL 4078155 (M.D. Fla. Sept. 17, 2012); In re Smith, 2016 WL 675806 (Bankr. M.D. Fla. Feb. 18, 2016) (tax refund resulting from married couple’s joint return is owned in tenancy by entireties); In re Freeman, 387 B.R. 871 (Bankr. N.D. Fla. 2008) (allowing tenancy-by-entireties exemption for tax refund resulting from joint return; unities not destroyed by provision of tax law that would allow a spouse to revoke decision to file jointly); In re Kepley, 352 B.R. 526 (Bankr. M.D. Fla. 2006) (funds in bank account owned in tenancy by entireties cannot be reached for individual debts; here, no suggestion that funds belonged only to debtor or were placed in account for purpose of hindering creditors); Beal Bank v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) (couple with two names on account presumed to own it by entireties unless expressly disclaimed; signature card for joint tenancy not express disclaimer unless couple was offered entireties account and declined). See also Fla. Stat. § 655.79 (any deposit or account in name of husband and wife shall be considered a tenancy by entireties unless otherwise specified in writing); In re Koesling, 210 B.R. 487 (Bankr. N.D. Fla. 1997) (Florida recognizes tenancy by entireties in personal property; couple met burden of proof of intent when ownership of promissory note was in both names and husband testified as to intent; note that Beal Bank removes the burden of proof from the debtors); Nunez v. Fernandez, 724 So. 2d 182 (Fla. Dist. Ct. App. 1999) (judgment debt of one spouse may not be set off against mortgage and promissory note owned by couple in tenancy by entireties). Cf. In re Hill, 197 F.3d 1135 (11th Cir. 1999) (transfer to tenancy by entireties may be attacked as fraudulent transfer, but due process requires that non-debtor spouse be made a party to this proceeding); Smart v. City of Miami Beach, 51 F. Supp. 3d 1299 (S.D. Fla. 2014) (tenancy by entireties not shown where wife owned account at time of marriage and added husband’s name years later; must show that both spouses owned account at time it was opened); In re Gorny, 2008 WL 5606583 (Bankr. M.D. Fla. Aug. 29, 2008) (allowing exemption for tax refund, but denying it for household furnishings, when debtors failed to show dates of marriage and of acquisition of property; denying exemption for car, which is governed by motor vehicle title law); Thomas J. Konrad & Assocs. v. McCoy, 705 So. 2d 948 (Fla. Dist. Ct. App. 1998) (creditor of husband sought to garnish couple’s bank account owned by tenancy of entireties; remanding to decide whether husband’s transfer of his separate funds into joint account, after judgment had been entered against him, was fraudulent). But cf. In re Pereau, 2007 WL 907545 (Bankr. M.D. Fla. Mar. 13, 2007) (listing six “unities” needed for tenancy by entireties; unity of interest not present when settlement check covered husband’s injuries and wife’s loss of consortium, two distinct claims), aff’d, 2008 WL 2074412 (M.D. Fla. May 15, 2008); Xayavong v. Sunny Gifts, Inc., 891 So. 2d 1075 (Fla. Dist. Ct. App. 2004) (Beal Bank presumption that married couple’s property owned in tenancy by entireties does not apply to motor vehicles when title statute unambiguously prescribes how to create co-ownership interest).

HAWAII: Traders Travel Int’l, Inc. v. Howser, 753 P.2d 244 (Haw. 1988) (statute allows tenancy by the entireties in real or personal property, but bank account here was a joint account).

MARYLAND: Merrill Lynch Bus. Fin. Servs., Inc. v. Targan, 2008 WL 2858921 (D. Md. July 22, 2008) (Md. Code Ann., Cts. & Jud. Proc. § 11-603(1) (West) makes all married couples’ accounts, in effect, tenancy by entireties, by forbidding garnishment for debt of one spouse, if the account was joint on date of judgment; but here transfer to joint ownership was fraudulent, because judgment imminent); Cruickshank-Wallace v. Cty. Banking & Tr. Co., 885 A.2d 403 (Md. Ct. Spec. App. 2005) (Maryland recognizes tenancy by entireties in personal property, but here tax refunds arising from husband’s individual earnings not owned in tenancy by entireties, even though couple filed joint returns and had agreed that their property would be owned in tenancy by entireties).

MICHIGAN: Zavradinos v. JTRB, Inc., 753 N.W.2d 60 (Mich. 2008) (married couple’s property—here, a securities account—is presumed owned in tenancy by entireties unless otherwise “expressly provided”).

MISSOURI: In re Brown, 234 B.R. 907 (Bankr. W.D. Mo. 1999) (under Missouri law, real and personal property of married couple is presumed to be owned in tenancy by entireties and thus exempt from claims of individual creditors); Scott v. Union Planters Bank, 196 S.W.3d 574 (Mo. Ct. App. 2006) (noting “settled law” that an execution for a judgment against one spouse cannot affect a bank account held in tenancy by entireties). But cf. In re Booth, 309 B.R. 568 (Bankr. W.D. Mo. 2004) (presumption of tenancy by entireties rebutted when vehicle purchased during marriage was titled in husband alone; no tenancy by entireties in vehicles purchased before marriage); In re Walker, 279 B.R. 544 (Bankr. W.D. Mo. 2002) (despite Missouri presumption that married couples own their property by entireties, tax refund of debtor and sole wage-earner wife was her individual property and could be garnished by her individual creditors); In re Thorpe, 251 B.R. 723 (Bankr. W.D. Mo. 2000) (Missouri permits ownership of personality by entireties, but requirements not satisfied even though motor vehicle was acquired during marriage).

PENNSYLVANIA: 78 Arch St. Assocs. v. Blatstein (In re Blatstein), 192 F.3d 88, 96 (3d Cir. 1999) (in Pennsylvania, real or personal property of married couple is presumed to be owned in tenancy by entireties); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975) (household goods are presumed to be entireties property); Cohen v. Goldberg, 244 A.2d 763 (1968) (money held in joint bank account was entireties property).

RHODE ISLAND: In re Homonoff, 261 B.R. 551 (Bankr. D.R.I. 2001) (personal property may be owned by entireties, but only if that intent clearly appears in conveyance; not shown here).

TENNESSEE: In re Sullivan, 2008 WL 3914494 (Bankr. E.D. Tenn. Aug. 20, 2008) (married debtors who own personal property in tenancy by entireties may each exempt up to 50% of the value of each piece of property, up to the $4000 per person limit); In re Garretson, 6 B.R. 127 (Bankr. E.D. Tenn. 1980) (CD in name of “husband or wife” is held in tenancy by entireties and cannot be reached by trustee in husband’s bankruptcy); In re Estate of Fletcher, 538 S.W.3d 444, 448 (Tenn. 2017) (spouses can hold personal property (here, a bank account) in tenancy by entireties, but if bank account allows one-signature withdrawal, funds withdrawn by one spouse become individual property); Avenell v. Gibson, 2005 WL 458733 (Tenn. Ct. App. Feb. 28, 2005) (1988 change in bank account attachment procedure did not change longstanding rule that presumes that married couple’s bank account is held in tenancy by entireties, notwithstanding account agreement describing joint tenancy).

VERMONT: Beacon Mill. Co. v. Larose, 418 A.2d 32 (Vt. 1980) (if bank account held as tenancy by entirety, it was not chargeable for husband’s sole debts). See also McNeilly v. Geremia, 249 B.R. 576 (B.A.P. 1st Cir. 2000) (proceeds of entireties real estate in Rhode Island that were transferred to Vermont bank account owned in tenancy by entireties were exempt under Vermont law, which applied even though debtors were in Rhode Island).

VIRGINIA: In re Thomas, 312 F.3d 145 (4th Cir. 2002) (even in joint bankruptcy, entireties property may be reached only by joint creditors); In re McKain, 455 B.R. 674 (Bankr. E.D. Tenn. 2011) (Virginia law allows tenancy by entireties in personal property, but no presumption of this form of ownership; must show all the unities, plus intent to create tenancy by entireties); In re Massey, 225 B.R. 887 (Bankr. E.D. Va. 1998) (under Virginia law, personal property could be owned in tenancy by entirety, even if it was not proceeds of sale of entireties real estate; when brokerage account described shares as owned by couple “as tenants by entirety,” this was sufficient). But cf. In re Cordova, 394 B.R. 389 (Bankr. E.D. Va. 2008) (Virginia generally permits tenancy by entireties for personal property, but specific statute governing motor vehicle titles explicitly forbids it); In re Potter, 274 B.R. 224 (Bankr. E.D. Va. 2002) (personal property in Virginia may be owned by entireties, but documents must either use the words “tenancy by entireties” or describe owners as husband and wife; not applicable when stock titled to couple’s two names, in joint tenancy with right of survivorship, and no mention of marital status); Rue & Assocs., Inc. v. White, 2006 WL 2022184 (Va. Cir. Ct. July 18, 2006) (married couple’s bank accounts were joint tenancy, not tenancy by entireties, when papers did not specify tenancy by entireties).

WYOMING: In re Welty, 217 B.R. 907 (Bankr. D. Wyo. 1998) (intangibles, here a business, could be held in tenancy by entirety, but documents must show clear intent to create this type of ownership).

231 78 Arch St. Assocs. v. Blatstein (In re Blatstein), 192 F.3d 88, 96 (3d Cir. 1999); In re Yerian, 2017 WL 4654538 (M.D. Fla. Oct. 17, 2017) (where bank account had all the attributes of joint tenancy with right of survivorship, and was owned by married couple, it is rebuttably presumed to be held in tenancy by entireties (TBE); remanding to determine whether couple was offered TBE and expressly disclaimed it); In re Hensley, 393 B.R. 186 (Bankr. E.D. Tenn. 2008) (presumption of tenancy by entireties for married couple’s car, titled in husband but used by both spouses); In re Hinton, 378 B.R. 371 (Bankr. M.D. Fla. 2007) (property of married couple presumed to be held in tenancy by entireties; when individual tax refunds deposited in bank account or used to purchase certificate of deposit held in tenancy by entireties, refunds were exempt); In re Kossow, 325 B.R. 478 (Bankr. S.D. Fla. 2005) (noting disagreement among Florida courts as to breadth of Beal Bank presumption and concluding it applies to all personal property acquired in accordance with the unities of possession, interest, title, and time with right of survivorship); Beal Bank v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) (recognizing presumption; creditor has burden of rebutting it); Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. Dist. Ct. App. 2018) (federal tax refund that resulted from joint filing is presumed to be owned in tenancy by the entireties (TBE) and protected from non-IRS creditor, even though IRS has certain statutory authority to seize TBE property); In re Estate of Fletcher, 538 S.W.3d 444, 449 (Tenn. 2017); Avenell v. Gibson, 2005 WL 458733 (Tenn. Ct. App. Feb. 28, 2005) (bank accounts of married couples presumed held as tenancy by entireties). But see In re McKain, 455 B.R. 674 (Bankr. E.D. Tenn. 2011) (must show all the unities, plus intent to create tenancy by entireties). But cf. In re Scioli, 586 Fed. Appx. 615 (3d Cir. 2014) (Del. law) (purchase of car using funds from checking account of husband’s business was sufficient to rebut presumption); In re Gorny, 2008 WL 5606583 (Bankr. M.D. Fla. Aug. 29, 2008) (burden on debtors to show the required unities: possession, interest, title, time, survivorship, and marriage; denying exemption for household furnishings because debtors failed to show date of marriage or of acquisition of property).

232 In re Haines, 528 B.R.912 (W.D. Mo. 2015) (failure to check tenancy by entireties box on account application not sufficient to rebut presumption when couple had been married for thirty years and did not maintain separate finances); Branch Banking & Tr. Co. v. Crystal Ctr., L.L.C., 2018 WL 1005351 (M.D. Fla. Feb. 2, 2018) (applying Beal Bank presumption to exempt bank account owned in joint tenancy with right of survivorship; spouses testified that they had intended a tenancy by entireties), report and recommendation adopted by 2018 WL 1000038 (M.D. Fla. Feb. 21, 2018); Matthews v. Cohen, 382 B.R. 526 (M.D. Fla. 2007) (Beal Bank presumption not overcome when debtors checked “joint tenancy with survivorship” box on stock certificate; check box for “other” provided, but none for “tenancy by entireties”), aff’d, 307 Fed. Appx. 266 (11th Cir. 2009); In re Anderson, 561 B.R. 230 (Bankr. M.D. Fla. 2016) (tenancy by entireties presumed unless explicitly disclaimed; articulating requirements to show explicit disclaimer); In re Canovas, 2009 WL 2386062 (Bankr. S.D. Fla. July 31, 2009) (titling of married couple’s account in “Mr. C or Mrs. C” not sufficient to rebut the presumption of entireties ownership); In re Hensley, 393 B.R. 186 (Bankr. E.D. Tenn. 2008) (certificate of title not determinative; married couple’s car, titled in husband but used by both spouses, is owned in tenancy by entireties); Morrison v. Potter, 764 A.2d 234 (D.C. 2000) (married couples’ joint checking accounts presumed to be held in tenancy by entireties; standard joint tenancy language in account agreement does not rebut presumption); Beal Bank v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) (signature card for joint tenancy not express disclaimer unless couple was offered entireties account and declined; note that, after this decision, Florida amended Fla. Stat. § 655.79 to provide, inter alia, that any deposit or account in the name of husband and wife shall be considered a tenancy by entireties unless otherwise specified in writing); Zavradinos v. JTRB, Inc., 753 N.W.2d 60 (Mich. 2008) (married couple’s property presumed owned in tenancy by entireties; checking “joint tenancy with right to survival” box on brokerage account paperwork not sufficient to rebut; must specify “and not in tenancy by entireties”); Avenell v. Gibson, 2005 WL 458733 (Tenn. Ct. App. Feb. 28, 2005) (1988 change in bank account attachment procedure did not change long-standing rule that presumes that married couple’s bank account is held in tenancy by entireties, notwithstanding account agreement describing joint tenancy). Cf. In re Adams, 551 B.R. 828 (Bankr. E.D. Tenn. 2016) (presumption of tenancy by entireties rebutted as to business account opened for business operated and solely owned by husband). But see Regions Bank v. Hyman, 91 F. Supp. 3d 1234 (M.D. Fla. 2015) (giving decisive weight to signature card on which multi-party account was checked and tenancy by entireties was not, despite debtors’ testimony that bank told them that account was tenancy by entireties, as they had requested); O’Brien v. Bank of Am., N.A., 75 A.3d 964 (Md. Ct. Spec. App. 2013) (account not owned in tenancy by the entireties because account agreement specified joint tenancy with right of survivorship).

While Beal Bank dealt with a bank signature card, it probably overrules other Florida cases holding that the form of ownership stated on a title or other ownership document is conclusive—for example, In re Mastrofino, 247 B.R. 330 (Bankr. M.D. Fla. 2000) (no tenancy by entireties in car that was titled to “husband or wife” and could be sold by either co-owner, nor in bank account when signature card created joint tenancy and permitted withdrawal on one signature).

233 In re Cordova, 394 B.R. 389 (Bankr. E.D. Va. 2008) (Virginia generally permits tenancy by entireties for personal property, but specific statute governing motor vehicle titles explicitly forbids it); Xayavong v. Sunny Gifts, Inc., 891 So. 2d 1075 (Fla. Dist. Ct. App. 2004) (Beal Bank presumption that married couple’s property owned in tenancy by entireties does not apply to motor vehicles where title statute unambiguously prescribes how to create co-ownership interest).

234 See, e.g., 735 Ill. Comp. Stat. § 5/12-112 (tenancy by the entireties only in real property, beneficial interest in a land trust, or certain real property held in inter vivos trust); United States v. Krol, 2017 WL 5632655, at *2 n.2 (E.D.N.C. Nov. 22, 2017) (stating that North Carolina does not recognize tenancy by entireties in personal property), report and recommendation adopted by 2018 WL 1792129 (E.D.N.C. Apr. 16, 2018); VFS Fin., Inc. v. Elias-Savion-Fox, L.L.C., 73 F. Supp. 3d 329 (S.D.N.Y. 2014) (New York does not recognize tenancy by entireties in personal property; here, a bank account); In re Adams, 506 B.R. 688 (Bankr. E.D.N.C. Mar. 4, 2014) (rents from entireties real property are personal property, which cannot be owned in tenancy by the entirety); In re Prosser, 2012 WL 246279 (Bankr. D. V.I. Jan. 20, 2012) (Virgin Islands does not recognize tenancy by the entireties (TBE) in personal property; Virgin Islands residents, who filed bankruptcy there, could not claim TBE for personal property located in Florida; debtors also failed to show the six unities); In re Gillette, 248 B.R. 845 (Bankr. M.D. Fla. 1999) (tenancies by entireties do not exist in Wisconsin; joint bank account may be reached); Whitlock v. Pub. Serv. Co., 159 N.E.2d 280 (Ind. 1959) (only real estate and certain crops can be owned in tenancy by the entireties); Lurie v. Sheriff of Gallatin Cty., 999 P.2d 342 (Mont. 2000) (tenancy by entireties not recognized in Montana for personal or real property); Bowling v. Bowling, 91 S.E.2d 176, 180 (N.C. 1956); State v. Myndyllo, 542 A.2d 478 (N.J. Super. Ct. App. Div. 1988) (proceeds of the sale of realty are personalty and cannot be owned in tenancy by the entireties); Brown v. Havens, 85 A.2d 812 (N.J. Super. Ct. Ch. Div. 1952) (ninety-nine-year lease is personalty and cannot be owned in tenancy by the entireties). See also Barton v. Hudson, 560 S.W.2d 20 (Ky. Ct. App. 1977) (real estate, but not bank account, can be held in tenancy by entireties).