I will respond to what I perceive to be two questions.
The first is more straightforward. Tenancy by the entitreties is a form of ownership recognized by 12 states, including Florida. Tenancy by the entireties is ownership by the marital unit, and thus is only available for a husband and a wife. The unique characteristic of tenancy by the entireties is that a creditor of one spouse is not legally allowed to seize assets owned as tenants by the entireties. Only a creditor with a judgment against both spouses would be able to access the assets owned as tenancy by the entireties.
Tenancy by the entireties owned assets must be acquired by the husband and the wife at the same time, and through the same instrument. For instance, an asset owned by one spouse prior to the marriage will not be a tenancy by the entireties owned asset, unless is it re-conveyed by the owner spouse to both spouses as tenants by the entireties.
Generally speaking, tenancy by the entireties ownership is quite effective asset protection for any creditor other than a creditor who has a judgment against both spouses, or, because of their "super creditor" position, the IRS. In a case out of Michigan a few years ago, a federal court held that the IRS could seize the husband's "beneficial interest" in tenants by the entireties assets. So far, there have been no other cases allowing such super powers to the IRS, and that case was based on Michigan's tenancy by the entireties law.
The other issue raised in your question is much more difficult to answer in the limited space and time allowed by this format. There are a number of techniques available that can be used for asset protection purposes. Which tool or technique is best or most appropriate for you depends on a number of circumstances, and whether you are seeking protection after a creditor's claim has arisen, or before such claims have arisen.
Various forms of trusts and other legal entities, including limited liability companies, limited partnerships, and other methods of ownership (for instance, tenancy by the entireties) can provide significant asset protection. Florida also has many statutory exemptions from creditor claims. For instance, all retirement plans (including IRAs) and annuities are exempt from creditor claims in Florida, as is life insurance death benefits, the cash value of life insurance (owned by the insured), disability income, and a wage account. You can learn more at our blog: The Florida Asset Protection and Estate Planning Blog (blog.thecolemanlawfirm.net).
To learn what particular techniques might be most appropriate for you and your circumstances, I strongly recommend that you consult with an attorney in Florida who is experienced in providing asset protection planning.
Randy Coleman
The Coleman Law Firm, PLLC
9250 Baymeadows Road, Suite 450
Jacksonville, FL 32256
Answered on Feb 08th, 2012 at 12:11 PM