On February 15, 2023 the Fourth District Court of Appeal issued an important decision regarding bank accounts held jointly by a husband and wife. For many years since the Florida Supreme Court decision in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), there has been a presumption that a bank account held by a husband and wife is an account held as “tenants by the entirety” (TBE) even if it is not designated as such on the signature card. The significance of an account held as TBE is that a judgment creditor of just one spouse cannot garnish the funds in the bank account. Only when the judgment creditor has a judgment against both spouses can the creditor garnish the account.

In 2008, however, the Florida Legislature amended Florida Statute §655.79(1) which reads “Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” (emphasis added).

The Fourth DCA’s February 15, 2023 decision in Storey Mountain, LLC a/a/o Iberiabank v. John P. George, focuses on the “unless otherwise specified in writing” language in section 655.79(1) and finds that the bank’s own checking account agreement constituted a “writing” that negated the presumption that the account was held as TBE. The checking account agreement read as follows:

FOR ACCOUNTS IN FLORIDA: If an account is in the names of spouses, you understand, intend and agree that such an Account is NOT owned as tenants by the entireties unless otherwise expressly designated on the Account records. We reserve the right to refuse to allow you to hold the Account as tenants by the entireties, in our discretion.  (emphasis added)

Thus, even though the husband and wife did not affirmatively disclaim their TBE status in a writing that they attached to the signature card, the Court held that the bank’s own documents served as the “writing” disclaiming TBE status. Having found that the couple disclaimed TBE status, the Court held that a judgment creditor of just the husband could garnish the bank account regardless of the fact that the couple were married.

The lesson to be learned from Storey Mountain is that if married couples want to protect their joint bank accounts from being garnished by a judgment creditor of just one spouse, then the couple needs to review their banking agreement documents to make sure these documents do not contain a disclaimer or waiver of TBE status. If the bank’s documents contain such language, and the bank either refuses to delete or amend the disclaimer language, the couple might want to consider doing their banking elsewhere.