Tag Archives: tenancy by the entireties

Tenancy by the Entireties Must Be Set Up From the Beginning

A recent case by Miami bankruptcy Judge Cristol should not come as a surprise to a Fort Lauderdale bankruptcy attorney but might be a surprise to those considering bankruptcy.  Property owned as husband and wife in Florida can be exempt from the creditors of one spouse.  For example, a car owned by husband and wife would appear to be protected from individual creditors.  But what if the wife purchased the car in her name and later changed the title to husband and wife?  This would violate one of the so-called unities of title required to establish tenancy by the entireties.    In re Shahegh, 2013 Bankr Lexis 359(Bankr. S. D. FL January 28, 2013)(Case no 12-25260) upheld the chapter 7 trustee’s objection to the debtor’s claim of exemption in a Mercedes. (Beware:  note as to motor vehicles based on the Florida motor vehicle title statute, a car owned by husband or wife is not held…
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Tax Refunds and Tenancy by the Entireties, Continued

My last post discussed a case finding that the right to receive a tax refund can be asserted as exempt as tenancy by the entireties.  However, on January 2, 2013, Judge Mark in the Miami bankruptcy division disagreed, finding that the right to receive a tax refund cannot be claimed as tenancy by the entireties.  In re Ascuntar, 2013 Bankr. Lexis 5(January 2, 2013) (Case no. 12-13965).  The court did recognize that once the refund is received and deposited into a tenancy by the entireties account, then the funds could be exempt.

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Tax Refunds and Tenancy by the Entireties

A few days ago another court upheld the claim of exemption as tenancy by the entireties in a tax refund.  In re Newcomb,  2012 Bankr Lexis 5654 (Bankr. M.D.  FL  Dec 4, 2012).  The court did discuss the conflicting authority amongst Florida bankruptcy judges.  The court reasoned that there was a rebuttable presumption  in favor of finding that personal property owned by husband and wife was held as tenancy by the entireties.

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