Section § 522(b)(3) of the Bankruptcy Code allows an individual debtor to fully exempt any interest in property that the debtor owns as tenant by the entirety provided that such interest is exempt under state law. It is well established that under Florida law property held by husband and wife as tenants by the entireties belongs to neither spouse individually. Therefore, it is exempt from process to satisfy debts owed to individual creditors of either spouse. Entireties property is not exempt from process to satisfy joint debts of both spouses. Thus, a Florida debtor filing an individual bankruptcy petition can fully exempt tenancy by the entirety property as long as there is no joint debt with the non-filing spouse.
There are six characteristics that joint property must possess in order to be held as tenancy by the entirety: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names). In summary, most joint property acquired during a marriage will be considered tenancy by the entirety property, and fully exempt in bankruptcy, so long as the debtor and non-filing spouse do not have any joint debt.