In Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), the Florida Supreme Court held that a presumption arises that personal property (i.e., a bank account) is held as a tenancy by the entireties (“TBE”) as long as the personalty was acquired by husband and wife in accordance with the unities of possession, interest, title, and time with right of survivorship. This presumption operates to shift the burden to the creditor to prove by a preponderance of evidence that a TBE was not created. In the following cases, the courts expanded the rationale in Beal Bank to include stock, limited partnership interests, tax refunds, household furnishings, and jewelry.
STOCK & LIMITED PARTNERSHIP INTERESTS: In Berlin v. Pecora, 968 So. 2d 47 (Fla. 4th DCA 2007), the decedent’s widow sued the personal representative of her late husband’s estate alleging that she and the decedent had jointly owned certain stock and limited partnership interests as TBE and that those interests passed to her on the decedent’s death. The widow’s main argument, and the one that the trial court agreed with, was that the TBE was created through the use of a joint account to buy the interests. The court reasoned:
Bank accounts are afforded the same presumption of tenancy by the entireties as is real property. Beal Bank, 780 So. 2d at 58. Property purchased with joint funds may create a tenancy by the entirety in that property so long as the unities are met. For example, in Winterton v. Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987), the court found that after the husband died, the wife owned bonds that were purchased with joint funds and kept in a joint safe deposit box. See also Estate of Fields v. Fields, 581 So. 2d 1387, 1388 (Fla. 3d DCA 1991)(“The bearer bonds, purchased with joint funds and maintained in the couple’s joint safe deposit box, passed to the wife upon the husband’s death. The bearer bonds were held by the spouses as tenants by the entirety; ownership vested in the wife as the survivor.”). Once tenancy by the entirety property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Group Sec., Inc., 886 So. 2d 295, 297 (Fla. 4th DCA 2004) (“Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession . . . .”); Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959).”
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[U]nless a tenancy by the entireties is clearly expressed in the instrument, the parties must prove they intended to create a tenancy by the entireties.” Hurlbert v. Shackleton, 560 So. 2d 1276, 1279 (Fla. 1st DCA 1990); Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436, 438 (Fla. 4th DCA 1999).
At trial, the court heard testimony from witnesses as well as the admission of several documents in which it found that the intention was to create a TBE. The decedent’s widow testified that she and her husband had an understanding that they would hold bank accounts, stock and real estate jointly as tenants by the entireties and that their ownership interests in the corporation and limited partnership were purchased through their joint bank accounts. The appellate court held that this was a factual question which the lower court ultimately determined by competent substantial evidence in favor of the decedent’s widow.
See also, Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 821 So. 2d 1251 (Fla. 4th DCA 2002) and In Re: Robert L. Mathews (Cohen v. Mathews), 307 Fed. Appx. 266; 2009 U.S. App. LEXIS 102 (11th Cir. 2009).
TAX REFUNDS: In In re Kossow, 325 B.R. 478 (Bankr. S.D. Fla. 2005), the court held that a joint income tax refund constitutes personal property that satisfies the unities of possession, interest, title, and time with right of survivorship subject to a rebuttable presumption. But see, In re: Kant, 2006 Bankr. LEXIS 4456; 21 Fla. L. Weekly Fed. B 59 (Bankr. M.D. Fla. 2006). There, the tax return for the year at issue showed that the debtor was the only spouse with income and withholdings for the year; therefore, the portion of the tax refund that was attributable to the overpayment of withholdings belonged to the debtor and was not exempt as being owned by the debtor and his wife as TBE.
HOUSEHOLD FURNISHINGS: In In re Kossow, 325 B.R. 478 (Bankr. S.D. Fla. 2005), the debtor claimed that certain furnishings and household accessories acquired before and after debtor’s marriage were exempt as TBE property. The property acquired by debtor before his marriage was assigned subsequent to the marriage to debtor and his wife as TBE pursuant to a prenuptial agreement. The court found that this property was exempt because all the unities of a TBE estate were in existence at the time the assignment was executed. With respect to the property acquired after debtor’s marriage, the property was exempt because the essential unities of the TBE estate had been satisfied. The court found that the policy justifications offered by Beal Bank should be applied to all personalty. The court reasoned:
As the Florida Supreme Court recognized in Beal Bank, married couples often lack documentation establishing an intent to create a tenancy by the entireties in personalty, which is especially true in matters involving household furnishings. As a result, married couples may be forced to “run in an obstacle course of litigation” in order to create a tenancy by the entireties estate in personal property. The Court finds that the failure to extend the presumption of a tenancy by the entireties to personal property acquired in accordance with the unities of an entireties estate would result in unnecessary litigation and confusion.
JEWELRY: In Connell v. Connell, 2012 Fla. App. LEXIS 12513; 37 Fla. L. Weekly D 1825 (Fla. 2nd DCA 8/1/12), the personal representative challenged an order of the court finding that the decedent’s watch and ring passed to the decedent’s surviving spouse. The issue on appeal was whether the decedent individually owned the watch and ring or whether the couple jointly owned them such that they passed to the wife by right of survivorship. The appellate court, in support of its finding that the watch and ring were estate assets, reasoned in part as follows:
Items of personal property such as rings and watches do not have documentation of title. It is the finding of the Court that the Decedent purchased these items using his personal funds. The items are masculine in nature and not an item that would be used by the spouse on a daily basis. This clearly indicates his intention, consistent with his actions, to use these items of jewelry for his personal benefit. The evidence does not support Fana Connell’s claim that the Decedent had donative intent when he gave her the two items of jewelry immediately prior to his final hospitalization. The pattern established by the parties was for her to retain the items for safe keeping to prevent their disappearing in the hospital. There is no doubt, had he returned from this hospitalization that he would have again resumed using both the ring and watch.
It is undisputed that the joint checking account was a joint tenancy with a right of survivorship, not a tenancy by the entireties. When a joint account holder withdraws funds from a bank account that is held as a joint tenancy with the right of survivorship, it “terminates the ‘joint tenancy nature of the [funds] and severs the right of survivorship as to the funds withdrawn.'” * * * *Thus, once the funds were withdrawn from the Connells’ joint checking account, the funds lost their joint character.
Moreover, the fact that the decedent purchased the watch and ring with funds from the joint checking account (and a small contribution of cash from Fana) while they were shopping together does not make the watch and ring the joint property of the Connells. Rather, it is for whom the watch and ring were purchased rather than how they were purchased that is important. * * * *
A joint tenancy has the characteristic of survivorship and to create a joint tenancy four unities must be present: the unities of possession, interest, title, and time. Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 53 (Fla. 2001). The unity of possession is joint ownership and control. Id. at 52. Here, the unity of possession was not present in either the watch or the ring. The watch and ring were intended for the decedent’s exclusive use. The decedent had been in the jewelry business, and he enjoyed expensive jewelry. He had the possession and use of the watch and ring. In fact, the trial court even made the oral finding on rehearing that the items were “personal to the decedent.”