Florida offers married homeowners a unique form of co-ownership called Tenancy by the Entireties (TBE). It treats the married couple as a single legal unit and -- critically -- protects the home from individual creditors of just one spouse. But TBE is frequently misunderstood. It does not make you immune to foreclosure when both spouses signed the mortgage. Understanding exactly what TBE protects against (and what it does not) can make a significant difference in how you respond to a foreclosure threat.
What Is Tenancy by the Entireties?
TBE is a common-law form of property ownership available only to legally married couples. Florida courts recognize it under longstanding common law principles, and F.S. 689.115 clarifies how deeds create TBE interests. For TBE to exist, five unities must be present simultaneously:
- Unity of possession: Both spouses own the whole property, not separate halves
- Unity of interest: Both spouses hold equal, undivided interests
- Unity of time: Both spouses acquired their interests at the same time
- Unity of title: Both spouses acquired the property through the same deed
- Unity of marriage: The owners must be legally married to each other
In Florida, a deed conveying property to a married couple -- such as "to John and Jane Smith, husband and wife" -- automatically creates TBE even without explicit TBE language. Importantly, neither spouse can convey their share independently; both must sign any deed, mortgage, or transfer document for it to be valid against TBE property.
The Core Protection: Individual Debts Cannot Reach TBE Property
The defining feature of TBE is that a creditor of only one spouse cannot force a sale or attach a lien to TBE property. If John alone has a credit card judgment, that creditor cannot seize the TBE home. The creditor cannot file a judgment lien that would allow foreclosure of the home while the TBE remains intact.
This protection flows from Florida common law and Art. X, Sec. 4 of the Florida Constitution, which provides homestead protections against forced sale for most debts. However, TBE and the homestead exemption work independently. TBE protects against individual creditors of one spouse even for non-homestead property. Homestead protects all owners (TBE, sole owner, etc.) from certain forced sales but has its own requirements regarding residence.
What TBE Does NOT Protect Against
TBE protection has important limits:
- Joint debts: Any debt to which both spouses are obligated can reach TBE property. A mortgage signed by both spouses is the most common example. When both spouses default on a jointly signed mortgage, the lender can foreclose regardless of TBE status.
- Property taxes: Tax liens attach to the property regardless of ownership form. A tax deed sale can proceed even against TBE property.
- HOA/condo assessments: Homeowners association and condominium association liens attach to the property (not just one owner) and can be foreclosed even against TBE-held homes. See our HOA vs. mortgage foreclosure guide.
- Mechanics liens: Construction and mechanics liens under F.S. Chapter 713 attach to the property, not just one owner.
- IRS federal tax liens: Federal tax liens under 26 U.S.C. 6321 attach to all property of the person assessed -- and courts have held that IRS liens can reach a taxpayer's TBE interest.
Divorce and Death: Events That Sever TBE
TBE exists only while the couple remains married. Divorce automatically converts TBE to Tenancy in Common (TIC). After divorce, each former spouse holds an individual, undivided half interest -- and individual creditors of one ex-spouse can now reach that person's half.
Death triggers the right of survivorship: when one TBE spouse dies, the surviving spouse instantly owns the entire property outright, free of the deceased spouse's individual debts. This is why TBE is sometimes used in estate planning as a probate-avoidance tool, though it has a narrower scope than a Lady Bird deed or living trust.
When Both Spouses Signed the Mortgage
This is the most common scenario for TBE-holding couples who face foreclosure. When both spouses signed both the promissory note and the mortgage (security instrument), TBE provides no protection from foreclosure. The lender holds a valid lien on TBE property that both spouses agreed to. The foreclosure complaint will name both spouses as defendants, both must be served, and both have the right to respond and negotiate.
For TBE-holding couples, all standard foreclosure options remain available:
- Loan modification -- both spouses must typically participate in the application. See our Florida loan modification guide.
- Short sale -- both spouses must sign the listing agreement and closing documents. A Florida short sale with a negotiated deficiency waiver protects both spouses from future collection.
- Deed in lieu of foreclosure -- both spouses must sign the deed transferring the property. See our deed in lieu guide.
- Sell before foreclosure -- if there is equity, both spouses must sign the sales contract and deed. Our pre-foreclosure sale guide explains the process.
- Chapter 13 bankruptcy -- both spouses can file jointly to halt foreclosure and cure arrears over 3-5 years. Learn more in our Chapter 13 bankruptcy guide.
When Only One Spouse Signed the Mortgage
The situation is more complex when only one spouse signed the promissory note and/or the mortgage. Florida Statute 689.11 requires both spouses to sign any deed or mortgage encumbering homestead property. If your home is your primary residence (homestead), and only one spouse signed the mortgage document, the mortgage may be unenforceable against TBE homestead property. Courts have found such mortgages void as to the non-signing spouse.
However, the analysis depends on whether the property was homestead at the time of signing, whether the lender can assert equitable defenses, and the specific title history. If you believe your situation involves only one spouse signing a mortgage on homestead property, consult a Florida foreclosure defense attorney immediately -- this may be a significant defense.
Deficiency Judgments and TBE
If your TBE-held home is foreclosed and sells for less than the debt, the lender may seek a deficiency judgment under F.S. 702.06. Since both spouses typically signed the note, both are personally liable for any deficiency. The one-year deadline from the Certificate of Title applies, and the deficiency is capped at the difference between the judgment amount and the property's fair market value at the time of sale. A retrospective FMV appraisal can reduce or eliminate this exposure.
After a deficiency judgment issues against one spouse individually, TBE no longer protects against that judgment -- TBE was already extinguished when the foreclosure sale occurred and fee simple title passed to the buyer.
Surplus Funds After a TBE Foreclosure
If your TBE-held home sells at auction for more than the outstanding debt, you are entitled to those surplus funds under F.S. 45.032. Both former TBE spouses have a claim to surplus funds. You must file a claim with the clerk of court within 60 days of the sale. Do not let unclaimed funds escheat to the State of Florida.
About Barrett Henry
Barrett Henry is a Broker Associate at REMAX Collective with 23+ years of Florida real estate experience. He provides free initial guidance to homeowners across all 67 Florida counties, including married couples navigating the intersection of TBE ownership and foreclosure. For a free evaluation of your situation, visit our contact page or call directly.
