Introduction

This published Eleventh Circuit decision addresses a recurring question at the intersection of Florida property law and bankruptcy: when is a married couple’s joint bank account exempt as tenancy by the entirety (TBE) property, and what is required to defeat that status? The creditor, Storey Mountain, sought to reach funds in a joint TD Bank account held by debtor Carlos C. Del Amo and his wife in a Chapter 7 proceeding. The account’s signature card bore a standard-form statement that “Joint accounts are owned as joint tenants with right of survivorship.” The debtor claimed the account as exempt TBE property under 11 U.S.C. § 522(b)(3)(B), which incorporates state-law exemptions.

The central legal issue was whether Florida’s 2008 amendment to Fla. Stat. § 655.79(1)—which provides that a spousal joint account “shall be considered” TBE “unless otherwise specified in writing”—abrogated the Florida Supreme Court’s common-law rule in Beal Bank, SSB v. Almand & Associates (2001) that only an express disclaimer of TBE, appearing on the signature card, suffices to overcome the TBE presumption. The bankruptcy and district courts ruled for the debtor; Storey Mountain appealed, arguing that a generic “JTWROS” designation was enough to “otherwise specif[y] in writing” under the statute.

The Eleventh Circuit affirms, holding that the 2008 amendment did not abrogate Beal Bank’s express-disclaimer requirement; it merely broadened where the disclaimer may appear—from the signature card to any “writing.” Critically, a bare label of “joint tenancy with right of survivorship” does not expressly negate TBE and therefore does not defeat the TBE presumption for spousal accounts.

Summary of the Opinion

• The court applies Florida law and affirms that a joint bank account held by spouses is presumed to be TBE property unless there is an explicit written disclaimer of TBE.
• Florida’s 2008 amendment to § 655.79(1) did not abrogate Beal Bank’s express-disclaimer rule; it codified the TBE presumption and expanded the permissible location of the disclaimer from “on the signature card” to “in any writing.”
• A statement that an account is “joint tenants with right of survivorship” (JTWROS), without more, is insufficient to rebut TBE because TBE is essentially a joint tenancy modified by the unity of the spouses as one legal person; the label does not expressly say “not TBE.”
• Because TD Bank’s signature card lacked an express anti‑TBE disclaimer and there was no other qualifying writing in the record, the account remained TBE and exempt in bankruptcy under § 522(b)(3)(B).

Analysis

Precedents Cited and Their Influence

• Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001)
  • Core rule: When a married couple holds a bank account and the six unities are present, the account is presumed TBE unless the signature card contains an express disclaimer of TBE. A mere designation of JTWROS is not enough to defeat TBE.
  • Two ways to expressly disclaim TBE in Beal Bank: (a) an express statement that TBE is not intended coupled with designation of another ownership form; or (b) a form offering TBE as an option with the depositors selecting a different option.
  • Relevance: The Eleventh Circuit treats Beal Bank as controlling Florida common law, unless clearly abrogated by statute. It frames today’s dispute around whether § 655.79(1) changed Beal Bank’s express-disclaimer requirement.
• First Nat’l Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971)
  • Earlier case imposing a higher burden to show TBE in personalty; Beal Bank receded from portions of Hector Supply but endorsed the proposition that an express designation of TBE on the signature card ends the inquiry.
• Florida abrogation canon
  • Statutes in derogation of the common law are strictly construed; abrogation must be explicit and clear. Cases include City of Hialeah v. State ex rel. Morris (1938), Carlile v. Game & Fresh Water Fish Comm’n (1977), Thornber v. City of Fort Walton Beach (1990), Ady v. Am. Honda Fin. Corp. (1996), Kumar v. Patel (2017), Peoples Gas Sys. v. Posen Constr., Inc. (2021).
  • The Eleventh Circuit also cites its own application of Florida’s strict-construction approach in Royal Palm Village Residents, Inc. v. Slider (2023).
• Post‑2008 Florida DCA decisions
  • Versace v. Uruven, LLC, 348 So. 3d 610 (Fla. 4th DCA 2022): Read the 2008 amendment as consistent with Beal Bank; emphasized that express designation of TBE on the signature card ends the inquiry and treated the amendment as relaxing proof of unities (conflict later noted).
  • Storey Mountain, LLC v. George, 357 So. 3d 709 (Fla. 4th DCA 2023): Held that, after the 2008 amendment, a TBE disclaimer may appear in a writing incorporated by reference into the signature card, reflecting that “writing” is broader than “signature card.” Confirmed that the amendment codified Beal Bank’s TBE presumption.
  • Loumpos v. Bank One, 392 So. 3d 841 (Fla. 2d DCA 2024), review granted, No. SC2024-1256 (Fla. Dec. 3, 2024): Concluded the six unities still apply to TBE in deposit accounts, relying on strict construction against abrogation; recognized, however, that the amendment “appears to have simply codified Beal Bank.” The Eleventh Circuit acknowledges Versace/Loumpos tension on the unities question but notes both are consistent that Beal Bank’s express-disclaimer rule survives.

Legal Reasoning

1. Governing law and standards
   • State law controls the nature of the debtor’s interest in personal property for bankruptcy exemptions under 11 U.S.C. § 522(b)(3)(B).
   • Federal courts are bound by the Florida Supreme Court’s interpretations; in the absence of controlling authority, they consider Florida DCA decisions unless convincing evidence shows the Supreme Court would decide differently.
   • Standard of review: Legal issues de novo; factual issues for clear error. The Eleventh Circuit reviews the bankruptcy court’s decision directly since the district court affirmed.
2. Did § 655.79(1) abrogate Beal Bank?
   • Text at issue (added in 2008): “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.”
   • Applying Florida’s strict abrogation canon, the court finds nothing “explicit, unequivocal, or clear” in the 2008 amendment that displaces Beal Bank’s express-disclaimer rule. To the contrary, the first clause codifies Beal Bank’s presumption of TBE for spousal joint accounts.
3. What changed in 2008? From “signature card” to “writing”
   • Beal Bank required the express TBE disclaimer to appear on the signature card.
   • The 2008 amendment uses the broader term “writing,” thereby expanding where a valid disclaimer may be found. The court’s textual analysis of “specified” (“to state explicitly or in detail”) and “otherwise” (“except for what has just been mentioned”) confirms that any writing used to rebut the presumption must explicitly state that the account is not TBE.
   • Therefore, while the location of a permissible disclaimer is broader, the content requirement remains stringent: an express, anti‑TBE statement is necessary.
4. Why “JTWROS” is insufficient
   • Under Beal Bank, TBE is “essentially a joint tenancy” modified by the common-law unity of marriage; a label of “joint tenancy with right of survivorship” is compatible with TBE and thus does not expressly negate it.
   • The statute’s phrase “unless otherwise specified in writing” requires a writing that explicitly carves out an exception to the TBE default. Saying “JTWROS” does not say “not TBE.”
5. Application to the case
   • The TD Bank signature card identified the account as joint and included small-print language that “[j]oint accounts are owned as joint tenants with right of survivorship.”
   • No writing in the record contained an express anti‑TBE disclaimer. Therefore, the Beal Bank presumption (codified by § 655.79(1)) controls: the account is TBE and exempt in bankruptcy.

Impact and Practical Implications

For financial institutions

• To avoid TBE ownership for spousal joint accounts, banks must use an explicit anti‑TBE disclaimer in a writing. Best practices include:
  • Provide ownership-type selections that include “Tenancy by the Entireties,” “Joint Tenancy with Right of Survivorship (not as TBE),” and “Tenancy in Common,” with clear, plain‑English explanations.
  • If TBE is not offered, include a conspicuous statement signed or acknowledged by both spouses such as: “We expressly agree and acknowledge that this account is NOT owned as tenants by the entireties.”
  • Place the disclaimer on the signature card and/or in an account agreement incorporated by reference and acknowledged—while the Eleventh Circuit reads “writing” broadly, Florida’s Fourth DCA (George) emphasized incorporation by reference into the signature card; aligning to that standard mitigates risk.
  • Store and be able to produce the written disclaimer; in bankruptcy and garnishment practice, production will be outcome‑determinative.

For creditors and bankruptcy trustees

• When pursuing a single‑spouse debtor, expect spousal joint accounts in Florida to be TBE and thus shielded from process unless there is a qualifying express anti‑TBE writing. Diligent discovery should target:
  • Signature cards, account agreements, welcome brochures, and any incorporated terms (including electronic acceptances) for an express “not TBE” statement.
  • Selection boxes where TBE was offered but another form was selected.
• Absent an express disclaimer, funds in the account are likely exempt under § 522(b)(3)(B) unless both spouses are liable on the debt.

For debtors and consumer counsel

• To preserve TBE protection, avoid signing documents that expressly disclaim TBE. Review small‑print disclosures; a mere “JTWROS” label does not defeat TBE, but any clause stating “not as tenants by the entireties” likely would.
• When possible, select TBE expressly on account-opening documents or use institutions that offer clear TBE designations.

Open questions and watch points

• Six unities requirement: There is a split between Versace (suggesting the amendment dispenses with proving unities in deposit accounts) and Loumpos (holding the unities remain required). The Florida Supreme Court granted review in Loumpos; its resolution may further clarify this aspect. The Eleventh Circuit noted the split but found it immaterial here.
• Scope of “writing”: The Eleventh Circuit’s reasoning embraces “any writing,” while George focused on writings “specifically incorporated by reference” into the signature card. Until the Florida Supreme Court speaks, cautious practice should assume incorporation/acknowledgment is prudent.

Complex Concepts Simplified

• Tenancy by the Entireties (TBE): A form of ownership unique to married couples. The spouses are treated as a single legal unit. Key protection: A creditor of just one spouse cannot reach TBE property; only a joint creditor of both spouses can.
• Joint Tenancy with Right of Survivorship (JTWROS): Each owner has an undivided interest with survivorship, but a creditor of one owner can typically reach that owner’s share. In Florida, TBE resembles a joint tenancy but adds the marital unit; therefore, “JTWROS” labeling alone does not negate TBE for spouses.
• Six Unities: Time, title, possession, interest, survivorship, and marriage. Historically required to form TBE in personal property. Whether Florida’s 2008 statute dispenses with proving these unities for bank accounts is in flux post‑Versace and Loumpos.
• Express Disclaimer of TBE: A clear, explicit written statement that the account is not held as TBE. Examples:
  • “We expressly disclaim ownership of this account as tenants by the entireties and instead elect [JTWROS/TIC].”
  • A form offering TBE, JTWROS, and TIC where spouses do not select TBE and affirmatively select a different option.
• Abrogation of Common Law: Florida courts require clear and explicit legislative language to overturn a common-law rule. Ambiguity is resolved in favor of the common law continuing to apply.
• Bankruptcy Exemption (11 U.S.C. § 522(b)(3)(B)): Allows a debtor to exempt any interest in property held as TBE to the extent it is exempt from process under applicable nonbankruptcy law (here, Florida law).

Conclusion

Storey Mountain v. Del Amo clarifies a pivotal point in Florida deposit-account law as applied in bankruptcy: the 2008 amendment to § 655.79(1) did not abrogate Beal Bank’s express-disclaimer requirement. A spousal joint account is TBE by default; to defeat that status, there must be an express anti‑TBE statement “in writing.” The amendment’s substantive effect is to broaden where the disclaimer may appear—from the signature card to any qualifying writing—while preserving the need for explicit language that the account is not TBE. A generic “JTWROS” designation is insufficient.

This opinion offers concrete guidance to banks, creditors, and consumers. Banks that wish to avoid TBE must secure and retain explicit anti‑TBE acknowledgments; creditors must obtain and scrutinize account writings for such disclaimers; debtors seeking TBE protection should avoid signing anti‑TBE language. Although questions remain regarding the six unities post‑amendment (with Loumpos under review), the core rule emerging from this decision is clear: only an express written disclaimer that specifically negates TBE can strip a spousal joint account of its TBE protection in Florida.