When is tenancy by entirety established

[OHBOY]

Ok, I am trying to figure out if I would be able to use, in bk, the larger exemption of $ 4000 instead of the $ 1000 on personal property (in Florida) going 'Tenancy by Entirety' instead of using Homestead exemption....

However, before I can dig into the above question (for which I see some threads already exist), I need to first clarify WHEN a TENANCY BY THE ENTIRETY is established. i.e.:

Spouse and I built house in FL in 1997 and lived there until 2002 (married until 2002, but stayed together under same roof...).

In 2003 bought house together (yes..same couple, while having unmarried status) 'Jointly with Right of Survivorship'.

Remarried each other in 2004... and hence the question:

Does the 'Joint Tenancy' AUTOMATICALLY convert to a 'Tenancy by the Entirety' at date of marriage, OR does it work the same as with bank accounts... in which case I believe the account must be opened together/ at the same time, with married status, to be eligible for 'Tenancy by the Entirety' exemption.

I am also scratching my head, and wondering if a $ 4000 exemption for TBE instead of the $ 1000 ( if one claims homestead) could apply to a debtor OUTSIDE of bankruptcy/without filing bk ?

Looked online trying to find some answers...without success.

I know... 'ask an attorney' is one possibility, b-u-t....Anybody possibly knows the answer and is willing to share ? THANKS !

[Widdle]

Article that may help answer your question

I have been trying to research some of the same info and came across this article that may help...

http://www.bankruptcyorlando.com/200...ankruptcy.html

[MSbklawyer]

You need to first be sure that your state recognizes tenancy by the entirety. Not all of them do.

It is established in the deed conveying the property. Your seller can convey it to you and your wife as joint tenants, co-tenants or tenants by the entirety.

Some states allow you to convey the property to yourself to change the status. Others require a "straw man" conveyance where you convey the property to a third party who then conveys it back to you in the form that you want.

[OHBOY]

I have been trying to research some of the same info and came across this article that may help...

http://www.bankruptcyorlando.com/200...ankruptcy.html

Widdle: ANY and ALL info is helpful, THANK YOU !

[Widdle]

Florida recognizes TBT

Op made mention his homestead was in Florida.....The link that I posted is discussion for only Florida...

Sorry, I should have clarified that....for filers in other states.

Thanks MSbklawyer for pointing that out.

[OHBOY]

You need to first be sure that your state recognizes tenancy by the entirety. Not all of them do.

It is established in the deed conveying the property. Your seller can convey it to you and your wife as joint tenants, co-tenants or tenants by the entirety.

Some states allow you to convey the property to yourself to change the status. Others require a "straw man" conveyance where you convey the property to a third party who then conveys it back to you in the form that you want.

MSbklawyer:
Yes, Florida does recognize TBE.
Please forgive me if I come across as a little deft (all true...), but I still don't 'get it' :

am I to understand that the original deed that was made out to both of us as 'Joint tenants' while we were NOT married at the time, turned AUTOMATICALLY into a 'TENANCY BY THE ENTIRETY' after we remarried ?

THANK YOU (!) for the input.

[Widdle]

Widdle: ANY and ALL info is helpful, THANK YOU !

You are welcome!

[DeadManCrawling]

MSbklawyer:
Yes, Florida does recognize TBE.
Please forgive me if I come across as a little deft (all true...), but I still don't 'get it' :

am I to understand that the original deed that was made out to both of us as 'Joint tenants' while we were NOT married at the time, turned AUTOMATICALLY into a 'TENANCY BY THE ENTIRETY' after we remarried ?

THANK YOU (!) for the input.

Usualy, it is NOT an automatic change. The fact that it was join tenants, even if for a while, will probably overrule the TBE exemption. You are in a very gray area of the law, and I would try to avoid pushing it one way or the other.

If possible, to enjoy TbE to the fullest, and if you have time, I would make the change in title immediately and plan to wait a couple years. Of course, this isn't always possible, but it is the best way to ensure no problems.

In FL TbE is usually assumed for marital property acquired after the date of marriage, but your situtation is unique. I would not want to be the case-law decision on the matter.

Good luck.

[MSbklawyer]

MSbklawyer:
Yes, Florida does recognize TBE.
Please forgive me if I come across as a little deft (all true...), but I still don't 'get it' :

am I to understand that the original deed that was made out to both of us as 'Joint tenants' while we were NOT married at the time, turned AUTOMATICALLY into a 'TENANCY BY THE ENTIRETY' after we remarried ?

THANK YOU (!) for the input.

In Florida, I don't know. In Mississippi, Dead man would be right --the answer would be "NO". Here, if we had a joint tenancy, we would have both spouses convey the property to a "straw man" who would then convey it back to them as tenants by the entirety. A joint tenancy is not converted to a tenancy by the entirety just because the joint tenants get married. In other words, married people can hold property as co-tenants, joint tenants, or tenants by the entireties. TBE has a lot of advantages for financially troubled people.

[DeadManCrawling]

there is a good explanation of a somewhat similar situation here:

http://floridaassetprotection.blogs.com/alperlaw/court_decisions/

Scroll down and you will see the case. The investment account was presumed to be TbE protected. But when the form was filled out, the owners chose a different method of titling. So, there are cases where HOW you title the asset can have a drastic impact later. I am unsure how you would undo such a recording except, perhaps, by moving the asset and waiting a long time before filing.

An attorney should be consulted for a more clear view, but this is a messy area of the law, in Florida at least.

[OHBOY]

MSbklawyer & DeadManCrawling:
THANKS (!!!) to both of your explanations I 'think' I've 'got it'.

While TBE sounded very appealing in order to get a possible shot at additional Exemption amounts, I certainly agree that it appears to be a "messy area of the law, in Florida at least ".

and...as I certainly don't need any more complications in my life at this time, I'll just stick with the Homestead exemption, and TBE on any personal household items aquired together AFTER remarriage.

Just too bad that TBE does not seem to be promoted more often so that everybody eligible knows about it and has a chance to plan accordingly.

[junker]

from my experience,when i lived in florida,,tenacy by entirety is not automatic...i co owned a house there..and was listed as single man living with single woman...i tried to get it changed to jt but was told only applies to married spouses...best i could get was tenant in common....which was no value to me...and i had to pay fifty bucks to get deed changed....what does your deed of trust say?? since i moved back to california..it is not a issue as they allow jt with right of survivorship...and dont even use by entirety here..heres some notes sent by legal aid here on subject
...bankruptcy of one joint tenant automatically severs the joint tenancy, and the bankrupt partys portion becomes part of the bankruptcy estate.
....a judgment lien that resulted from a lawsuit against one joint tenant does not automaticlly sever the joint tenncy, but a forced sale that could follow does: the portions(s) belonging to the other former joint tenant are now held as tenncy in common with the new owner..
....a joint tenancy between spouses who divorce is automatically severed unless they agree to keep it. normally, upon divorce. a property settlement will spell out the parties new status vis a vis any property, but if there is none, a joint tenancy becomes a tenancy in common....
.....if two or more people come to own property together. it is considered a tenancy in common unless the deed says something different, OR unless the co_owners are spouses..
....please note that this is from california legal aid....

[OHBOY]

"....what does your deed of trust say?? "

Deed states: 'joint tenants with full rights of survivorship'....at the time we were not married... but since have remarried to each other....

THANKS (!) for having listed clarifications from legal aid