Florida Tenants by Entireties Exemption
05/07/14
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The court found that the status of property as tenants by the entireties created under New Jersey tenants by the entireties law, must be determined under New Jersey law which was the state in which the property was acquired. The court noted New Jersey statutes does provide for the holding of personal property as tenants by the entireties if certain requirements are met per New Jersey Statutes section 46.3-17.2. In this instance, the bankruptcy court found that debtor did not meet the statutory requirements as to the household goods as the debtor did not produce a written instrument as evidence. In any event, the court apparently noted that in New Jersey, property owned as tenants by the entirety is not exempt from the claims of an individual's sole (non-joint) creditors as is the case in Florida.
Atty. Jordan E. Bublick, 1221 Brickell Avenue, 9th Fl., Miami, Florida
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In a bankruptcy case filed in Florida, property held under the Florida law of tenants by the entireties - between a husband and wife - is usually considered as exempt from the bankruptcy estate to the extent of the claims of creditors against only one of the two spouses.
Pursuant to 11 U.S.C. section 522(b)(3)(B), an individual is allowed to exempt from the bankruptcy estate "...any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety...to the extent that such interest...is exempt from process under applicable nonbankruptcy law. 11 U.S.C. section 522(b)(3)(B).
Six Characteristics of Tenants by Entireties Property
In a recent case before a Florida bankruptcy court, the court reviewed that the six characteristics of property held tenants by the entireties in Florida. These six characteristics are:
- unity of possession
- unity of interest
- unity of title
- unity of time
- survivorship
- unity of marriage
In this case, the Florida bankruptcy court did not have a problem in finding exempt certain personal acquired as Florida residents under the Florida law of tenancy by the entireties.
New Jersey Property
But the question was presented to the Court as to the tenants by the entireties exemption of certain property obtained by a debtor while they were living in New Jersey and before the bankruptcy case was transferred from New Jersey to the Florida bankruptcy court.
The court found that the status of property as tenants by the entireties created under New Jersey tenants by the entireties law, must be determined under New Jersey law which was the state in which the property was acquired. The court noted New Jersey statutes does provide for the holding of personal property as tenants by the entireties if certain requirements are met per New Jersey Statutes section 46.3-17.2. In this instance, the bankruptcy court found that debtor did not meet the statutory requirements as to the household goods as the debtor did not produce a written instrument as evidence. In any event, the court apparently noted that in New Jersey, property owned as tenants by the entirety is not exempt from the claims of an individual's sole (non-joint) creditors as is the case in Florida.[more]
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