by Carlos A. Rodriguez
Few married couples, when opening a joint bank account, appreciate the subtle
differences between the possible forms of ownership in which they may hold an account or, much less, the potentially significant consequences that flow from the form they select. For instance, they probably do not realize that the selected form will determine whether their account may be subject to the individual debts of either spouse and whether a spouse’s ownership interest in account funds survives their withdrawal and appropriation by the other spouse without the former’s consent.
Although the latter issue may arise during the lives of both spouses, oftentimes one spouse, after the death of the other, will discover that the now-deceased spouse had withdrawn funds from, or written checks against, their joint accounts without the other spouse’s prior knowledge or consent. The surviving spouse may have also discovered that the deceased spouse either transferred the withdrawn funds to a third person or appropriated the funds to his or her own use by, for example, having deposited them in a separate account or by having the other spouse’s name stricken from the joint account.
Upon such a discovery, especially in second marriage situations, the surviving spouse may attempt to recover the withdrawn funds either from the deceased spouse’s estate or the third party donee. Generally, in order for a spouse to successfully assert an ownership interest in the funds superior to that of the estate or the donee, that spouse must establish that the account from which the funds were withdrawn was held by the couple as tenants by the entireties (TBE). However, recent cases from the Second and Third district courts of appeal have held that the ownership interests of joint account owners in funds held as joint tenants with rights of survivorship (JTWROS) survive their withdrawal, under certain circumstances, by one of the other account owners.
Although the case law dealing with joint bank accounts and the tracing of funds has been described as being in a state of morass, this author will attempt to distill the cases into some clarifying principles. This article will discuss 1) the nature of an ownership interest in a bank account; 2) the unities and characteristics of the JTWROS and TBE forms of ownership, in general; 3) the application of the TBE form of ownership to bank accounts; 4) the tracing of withdrawn TBE account funds; 5) the split of authority on whether an account owner’s interest in JTWROS account funds survives their withdrawal by another account owner; and 6) conclude that, although the legislature or the banking industry may at least lessen the morass of case law by forcing married couples to explicitly designate, upon creation, that a joint account is or is not held by them as TBE, because of the inherent difficulty in applying the TBE concept to bank accounts, this issue will continue to generate litigation.
Nature of Ownership
Interest in Bank Accounts
A bank deposit constitutes a chose in action or right to money1 arising from a contractual relationship between one who delivers money to a bank, the depositor, and the bank which receives it upon the agreement that the deposit will be paid out on the order of the depositor or returned to him or her on demand.2 It is a debt or loan owing by the depository to the account owner.
At the time a bank account is opened, the depositor indicates the signature or signatures which he or she authorizes the bank to recognize by executing a specimen signature card and other documents the bank may require.3 Many couples, if not most, execute the signature card in the “disjunctive” (i.e., husband or wife) which, in the bank’s eyes, means either spouse may unilaterally withdraw all the funds in the account.
The relationship between the bank and the account owner is generally controlled by the intention of the bank and the account owner at the time the account is opened.4 Where a deposit account is titled in the names of two or more persons, F.S. §§655.78(1) and 655.79(1) (1995) provide, in combination, that unless otherwise expressly provided in the agreement or signature card, such an account may be paid to either person and is presumed to have been intended by such persons to pass, upon the death of any of them, to the surviving person or persons.
However, neither these statutes nor the terms of the signature card or other contract between the bank and the account owners is conclusive of the ownership rights as between the account owners. In re Guardianship of Medley, 573 So. 2d 892, 904 (Fla. 2d DCA 1990), appeal dismissed, 629 So. 2d 134 (Fla. 1993); Hagerty v. Hagerty, 52 So. 2d 432, 434 (Fla. 1951). Rather, they serve merely to protect the bank from liability to the account owners in paying out funds. Id.
Unities and Characteristics
A bank account, like any other type of property, may be held by a married couple as JTWROS or as TBE.
• Joint Tenancy With Right of Survivorship
In order to create and maintain the JTWROS form of ownership in real or personal property, the following four unities must exist:5
1) Unity of possession (joint ownership and control);
2) Unity of interest (the interests must be the same);
3) Unity of title (the interests must originate in the same instrument); and
4) Unity of time (the interests must commence simultaneously).
In addition, the joint tenancy form of ownership confers on the surviving joint tenant the right of survivorship, provided the instrument creating the joint tenancy expressly provides for it. F.S. §689.15 (1995). Therefore, in conjunction with the statutory presumption of survivorship in §655.79(1) or a signature card designation of survivorship, a jointly owned bank account that satisfies the four unities listed may be held under the JTWROS form of ownership.
Any act of a joint tenant that destroys any one or more of the four unities operates as a severance of the JTWROS and extinguishes the right of survivorship. Kozacik v. Kozacik, 26 So. 2d 659, 661 (Fla. 1946). Thus, a joint tenant may voluntarily sever and terminate the tenancy by, for example, partition or by a conveyance of the tenant’s property interest to a stranger, since by such act the unities of title and possession are destroyed.6 The mode in which joint tenants hold the property that is the subject of the estate is described as “per my et per tout,” meaning, by the half and by the whole, the effect of which is that for purposes of tenure and survivorship each is the holder of the whole but for purposes of alienation each has only his or her own share, or moiety, which is presumed to be equal.7
Although the JTWROS and TBE forms of ownership are very similar in their unities and characteristics, the differences between them carry significant consequences.
• Tenancy by the Entireties
In order to create and maintain a TBE in real or personal property, in addition to the four unities of 1) possession, 2) interest, 3) title, and 4) time, the unity of marriage (or person) must exist. First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777, 781 (Fla. 1971). Thus, only a husband and wife may hold property under this form of ownership.
The unity of person element listed above arose from the common law concept that the husband and wife are one person.8 Thus, each spouse is deemed to own and control the whole estate,9 or, in other words to be siesed of the entirety and not of a share, moiety, or divisible part.10 In contrast to the JTWROS form of ownership, the husband and wife, under the TBE form of ownership, are said to hold the property “per tout et non per my,” or by the whole and not by the moiety.11
Because of this unique unity of person element:
1) Neither spouse, acting alone and without the assent of the other, may sever the entireties estate by, for example, conveying his or her interest in the estate to a third party.12
2) Property held by a couple as TBE is not subject to creditors’ claims against either spouse.13
3) A husband or wife, at the death of the other, owns the whole estate that was owned by both during their lives under the TBE.14 In contrast to those holding under a JTWROS, the surviving spouse does not take by right of survivorship, but rather continues to hold the whole estate after the death of the other spouse by virtue of the unity of person element of the TBE form of ownership.15
Finally, while a JTWROS may be terminated by the unilateral act of a joint tenant, a TBE may be terminated only when:
1) Both spouses join in the conveyance of the property;
2) One spouse dies and the survivor acquires the sole interest;
3) One spouse conveys the property to the other spouse; or
4) The unity of marriage is destroyed through divorce, resulting in the parties becoming tenants in common.
In re Lyons Estate, 90 So. 2d 39, 41 (Fla. 1955).
Application to Personal Property—As discussed above, the unities of a TBE are the same regardless of whether the estate is held in real or personal property. However, the courts, in determining whether such an estate has been created in real or personal property, have developed different rules. While the mere conveyance of real property to husband and wife, as such, is presumed to create a TBE in such property, a transfer or acquisition of personal property to or by husband and wife does not give rise to such a presumption; rather, in order to create a TBE in personal property, not only the form of the estate must be consistent with the five unities of a TBE, but the intention of the parties to create a TBE in personal property must be proven.16
The reason for this double standard is based on the following concerns:
1) Transfers of real property are matters of record which occur infrequently and which generally involve formal transactions necessarily requiring the consent of both spouses. Personal property, on the other hand, is generally not under mandate of record and, consequently, may easily be transferred with great frequency by either spouse without mutual consent or without knowledge of the other spouse; and
2) The application of the TBE concepts to personalty becomes exceedingly complex as the nature of the personalty (i.e., bank accounts) increases in sophistication, and consequently, the courts are forced to establish greater safeguards to prevent abuse of the entireties concept. Hector Supply Co., 254 So. 2d at 780.
Tenancy by the Entireties
in Bank Accounts
• Establishment of TBE
As with any other type of personal property, a married couple may own a bank account as TBE. However, the courts have had particular difficulty in applying the TBE concepts to bank accounts. Estate of Lyons, 90 So. 2d at 42; Winters v. Parks, 91 So. 2d 649, 651-52 (Fla. 1956). This difficulty arises from the fact that such accounts, when constituting a TBE, closely resemble any other type of joint account, including joint accounts created for convenience and JTWROS accounts and, because of the relative ease with which funds may be withdrawn from the account by either spouse, the account balances are constantly fluctuating.
Form and Intent Elements—Despite the difficulty in applying the TBE concept to bank accounts, TBE in bank accounts have been recognized under Florida law since 1925. Bailey v. Smith, 103 So. 833 (Fla. 1925). However, as with other types of personal property, a bank account opened by husband and wife is not presumed to be held by them as TBE. Winters, 91 So. 2d at 652. Married couples, unless certain evidentiary factors are satisfied as explained below, generally hold accounts as JTWROS. In order to establish that a husband and wife hold a bank account as TBE, the following two elements must be met:
1) The form of the estate must be present, in that, the bank account signature card or contract must be drafted in a manner consistent with the aforementioned five essential unities of a TBE; Hector Supply Co., 254 So. 2d at 781; and
2) The intent of the husband and wife to create a TBE account must be proven either a) by considering the facts and circumstances leading up to and surrounding the opening of the account, or b) by showing that the couple made an express designation in the signature card or contract that they hold the account as TBE. Hector Supply Co., 254 So. 2d at 781; Winters, 91 So. 2d at 652.
• Disjunctive (“OR”) Accounts: Unity of Possession Not Violated
Because a TBE is predicated on the theory that each spouse is seised of the entire estate, an apparent obstacle to establishing a TBE in a bank account arises when the account is held in the name of “husband or wife,” and where the terms of the signature card and deposit agreement with the bank allow either spouse to withdraw, solely on either spouse’s signature, all of the funds in the account. Hagerty, 52 So. 2d at 434. At first glance, this would appear to violate the unity of possession (or control) element that must exist in order to establish a TBE.
However, Florida courts have consistently held that the unity of possession is not violated merely because either spouse has the power to withdraw the entire account balance. Hector Supply Co., 254 So. 2d at 779; Hagerty, 52 So. 2d at 434. This rule is based on the theory that such a power to withdraw represents an immediate expression of authority of agency of either spouse to act for both in withdrawing funds, provided the fruits or proceeds of such a withdrawal inures to the benefit of both spouses. Hagerty, 52 So. 2d at 434; Hector Supply Co., 254 So. 2d at 779; In re Guardianship of Medley, 573 So. 2d 892, 904 (Fla. 2d DCA 1990); 12 Fla. Jur. 2d, Cotenancy & Partition, §17; contra, Simpson v. Schoeneman, 263 So. 2d 854, 857-58 (Fla. 1st DCA 1972) (where signature card contains sufficient statement of permission for one spouse to act for other, wife may, without husband’s knowledge or consent, close joint bank accounts and give proceeds to her niece, regardless of whether account is owned as TBE or JTWROS).
• Designation on Signature Card Not Conclusive of Joint Account Owners’ Rights Inter Se
While the terms of a signature card may serve as evidence of the account owners’ intent with regard to establishing a TBE, it is not determinative of the type of ownership interest the account owners have in the account funds. Medley, 573 So. 2d at 900. The provisions of a signature card are only for the protection of the financial institution. Id. For instance, the courts have held that merely because a signature card contains a designation that the account is a “joint account with right of survivorship” does not preclude the creation of a TBE in such an account. Winters, 91 So. 2d at 652; Sitomer v. Orlan, 660 So. 2d 1111, 1115 (Fla. 4th DCA 1995).
Thus, so long as the overall terms of the signature card and deposit agreement satisfy the five unities of the TBE, the couple’s failure to explicitly state that the account is held by them as TBE does not preclude a finding that the account at least has the form of a TBE.
To establish TBE in a bank account, not only must the form of a TBE be established with regard to the acount, but also the intent of the couple to own the account as TBE must be shown.
Evidence of Intent Factors—In determining whether a husband and wife had the requisite intent to establish a TBE at the time they opened the account, the courts consider it significant that:
1) Both spouses contributed to the account; Winters, 91 So. 2d at 652;
2) Both spouses made use of the account; id.
3) There is testimony that both spouses owned the account; Marine Midland Bank-New York v. Arms, 409 So. 2d 215 (Fla. 4th DCA 1982);
4) Funds from the account went to pay marital expenses; Robinson v. Robinson, 651 So. 2d 1271, 1273 (Fla. 4th DCA 1982); Winters, 91 So. 2d at 650;
5) The parties made statements indicating their intentions concerning the account, such as to protect it from the creditors of one of them; Terrace Bank of Florida v. Brady, 598 So. 2d 225, 228 (Fla. 2d DCA 1992); McGillen v. Gump- man, 171 So. 2d 69, 70 (Fla. 3d DCA 1965); and
6) The accounts were opened with the intention that each spouse should have the use of all or any part of the balance at any time and that upon the death of either, any remainder should immediately become the property of the survivor. Hagerty, 52 So. 2d at 434. Sitomer, 660 So. 2d at 1115.
Finally, the fact that one spouse deposits all of the funds in the account does not preclude the creation of a TBE in those funds; it is no different from a spouse purchasing realty with his or her own money and having title conveyed to both spouses, as husband and wife. Hagerty, 52 So. 2d at 434. If it is established that a bank account is held as a TBE, then each spouse has an equal interest in all funds standing to the credit of the account. Bailey, 103 So. at 834. Consequently, neither spouse may alien or forfeit any part of the account without the assent of the other spouse. Bailey, 103 So. at 834; Strauss, 3 So. 2d at 728; Andrews v. Andrews, 21 So. 2d 205, 206 (Fla. 1945); Lyons Estate, 90 So. 2d at 42; Sitomer, 660 So. 2d at 1113-14.
Tracing Withdrawn and Misappropriated TBE Funds
Based on the nonseverability quality of a TBE, Florida courts have held that where a TBE has been established in a bank account, neither spouse, without the other’s consent, may terminate or sever the TBE by, for example:
1) Bringing a partition action with respect to the funds in the account, Bailey, 103 So. at 834;
2) Having a bank clerk strike the other spouse’s name from the account ledger sheet, Lyons Estate, 90 So. 2d at 42;
3) Withdrawing all of the funds in the account and gratuitously transferring them to a sibling, Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959); or
4) Withdrawing all of the funds in the account and transferring them to a revocable trust for the withdrawing spouse’s lifetime benefit, Medley, 573 So. 2d at 897.
Thus, where one spouse renames a TBE account, or transfers all or part of the funds from the account to a third party, without the other spouse’s consent, the TBE status of the funds is preserved and, consequently, the other spouse may trace and recover those funds even after the death of the withdrawing spouse. Sitomer, 660 So. 2d at 1114; Medley, 573 So. 2d at 897. This rule, however, may give rise to opportunistic behavior on the part of the surviving spouse.
Because of the very nature of bank accounts, because of the right of either spouse, under disjunctive ownership joint accounts, to withdraw the entire balance on his or her signature alone, and because of the rules the courts have developed, application of the TBE concept to bank accounts is problematic. For instance, a surviving spouse, especially in a second marriage situation, may attempt to recover funds that the now-deceased spouse had withdrawn and given to a third person, even though the surviving spouse may have been aware of and may have orally consented to the gift before it was made.1 a continuing interest in account funds that have been withdrawn by the deceased spouse, two very fact-specific determinations must be made:
1) Whether the couple, based on the form of the account signature card and
deposit agreement and on the couple’s intent, created a TBE account; and
2) Assuming that a TBE in the account is established, whether the surviving spouse had knowledge of or consented to the withdrawal and applica- tion of account funds withdrawn by the now-deceased spouse.
Because the cases do not reveal what set of facts establishes either the absence or presence of knowledge or consent on the part of the surviving spouse, the “knowledge or consent” prong of the above two-part test raises some interesting evidentiary questions. For instance, how does the surviving spouse (who is now seeking to recover the withdrawn funds) prove absence of knowledge or consent? Does the fact that the monthly bank statements were mailed to the couple’s home preclude a claim of ignorance of the withdrawals and transfers on the part of the surviving spouse? Is testimony that the deceased spouse handled all the family finances before his or her death enough to counterbalance the fact that the surviving spouse had physical access to the monthly bank statements in that they were mailed to the couple’s home?
As discussed above, it seems that such a rule would allow an opportunistic surviving spouse to claim ignorance of withdrawals and transfers by the now-deceased spouse in order to recover funds gifted by the decedent to third parties, even though the surviving spouse may have orally consented to the withdrawals at the time.
In sum, despite the aforementioned difficulties in recognizing the TBE form of ownership in bank accounts, Florida case law is well settled that a TBE may exist in such property. However, recent Florida cases have created a split of authority on the issue of whether the right to trace and recover withdrawn and misappropriated account funds applies to account owners who hold as JTWROS. Both the Second and Third district courts of appeal have held recently that a JTWROS account owner’s interest in account funds survives their withdrawal from the account by one of the other owners, while the Fourth District Court of Appeal has held that only the interests of those persons owning an account as TBE survive the unilateral withdrawal of account funds by one of the account owners.
Split of Authority: The
Second and Third DCAs
v. the Fourth DCA
• Medley and De Soto: Interest In JTWROS Funds Survives Wrongful Withdrawal
In re Guardianship of Medley: Spouse May Trace Funds Withdrawn and Within the Possession, or Under Direction, of the Other Spouse—This case involved 12 joint savings and loan association accounts totalling $260,000. The signature cards authorized either spouse, Mr. or Mrs. Medley, to make withdrawals. Mr. Medley, who subsequently predeceased Mrs. Medley, withdrew all the funds from the accounts and placed them in a trust for his lifetime benefit with the remaining trust property passing, at his death, to his half sister and housekeeper.
Mrs. Medley’s daughter, and others as beneficiaries of eight of the accounts, petitioned to surcharge the bank, which served not only as guardian of the property of Mrs. Medley (now deceased) but also as trustee of the trust in which Mr. Medley placed the withdrawn account funds, for damages to Mrs. Medley’s guardianship and probate estates. The petitioners alleged that three of the 12 accounts were held by the couple as JTWROS, one account was held as TBE, and eight Totten Trust accounts were held as TBE.
The court held that regardless of whether a joint account is held as JTWROS or TBE, the interest of one account owner will continue in the funds when all the funds are withdrawn by the other owner and appropriated to the other owner’s use without the agreement of both owners, notwithstanding the right of either owner to withdraw from the account. Id. at 897. The court, however, limited its holding by noting that it was merely deciding whether the petitioners sufficiently alleged the existence and breach of a duty on the part of the bank to safeguard the interests of Mrs. Medley in funds withdrawn by, and in the possession or under the direction of, Mr. Medley. Id. at 897, n.3. The court explicitly refused to address the status of the interests of one joint account owner in funds withdrawn by the other owner after the other owner’s further disposition of the funds to a third party. Id.
In sum, Medley stands for the proposition that even where there is no evidence that a husband and wife intended to create a TBE account, and thus created only a JTWROS account, a spouse’s interest (even as a joint tenant) continues in funds that have been withdrawn from the account by the other spouse without the former’s knowledge and consent, at least where the withdrawn funds are still within the control of the withdrawing spouse. However, the continuity of an account owner’s interest in withdrawn JTWROS account funds depends, under the Second DCA’s reasoning, on whether the withdrawal of the funds was “rightful” or “wrongful,” or, in other words, whether the account owner withdrew only his or her moiety, or share, of the funds or more than his or her share.
Where a JTWROS account owner makes a rightful withdrawal, i.e., a withdrawal of only that owner’s proportionate share of the funds, the withdrawing owner’s right of survivorship in the remaining account funds and the nonwithdrawing account owner’s right of survivorship in the withdrawn funds are both terminated. Id. at 898. However, where a JTWROS account owner makes a “wrongful withdrawal,” i.e., a withdrawal of more than that owner’s moiety, or proportionate share, of account funds, the nonwithdrawing owner’s moiety or proportionate interest in the withdrawn funds survives the withdrawal. Id. at 898. The court, adopting the reasoning of the dissenting opinion in Wiggons v. Parsons, 446 So. 2d 169 (Fla. 5th DCA 1984), explains that this rightful/wrongful withdrawal analysis with regard to JTWROS accounts is based on the nature of a JTWROS in that joint tenants, by reason of the combination of entirety of interest with the power of transferring in equal shares, are said to be seised per my et per tout or by the half and the whole. Id. at 898.
Thus, because Mr. Medley withdrew and appropriated to his own use without Mrs. Medley’s consent more than his moiety (one-half of the account balance) in the JTWROS accounts, his withdrawal was wrongful, and consequently, Mrs. Medley’s moiety or share of the account continued in one-half of the withdrawn funds even after their transfer to Mr. Medley’s trust. With regard to Mr. Medley’s withdrawals from the TBE accounts, Mrs. Medley’s interest followed all of the withdrawn funds into the trust by reason of the nonseverabil- ity aspect of the TBE estate.
• De Soto: Ownership Interest of Joint Tenant in Account Funds Follows Their Withdrawal
Recently, the Third DCA adopted the Second DCA’s Medley decision. On the authority of the Medley holding, the Third DCA in De Soto v. Guardianship of De Soto, 664 So.2d 66, 67 (Fla. 3d DCA 1995), held that the interest of a JTWROS account owner may continue in funds withdrawn by, and placed in the individual account of, another owner. In the De Soto case, Mercedes De Soto, Antonio De Soto, her brother, and Martha De Soto, Antonio’s wife, established several joint accounts bearing all three names. Mercedes and Antonio both contributed funds to the accounts while Martha contributed nothing. In 1993, at which time the accounts totalled $324,000, Antonio’s son, who subsequently became plenary guardian for his father and partial guardian for his mother, obtained a power of attorney from his father and transferred all of the funds from the joint accounts into an account titled in Antonio’s name as trustee for the son as sole beneficiary. In light of this transfer of funds, Mercedes filed a petition in probate court to recover one-half of the $324,000 on the theory that only she and Antonio contributed to the account.
Citing Medley, the court awarded Mercedes one-third of the withdrawn funds, or $108,000, and held that the interests of all joint account owners in the account funds survive their transfer from the account by one of the owners. Id. at 67. Although it did not explicitly apply it, we may infer that the court in De Soto adopted the “rightful/wrongful withdrawal” analysis of Medley: 1) Antonio’s withdrawal (by way of his son’s power of attorney) of all the account funds was wrongful because it exceeded his moiety (or one-third share) in the funds; and 2) therefore, Mercedes’ moiety (or one-third share) in the account followed the withdrawn account funds into Antonio’s Totten Trust account.
Although not involving a husband and wife account, the holding in De Soto allowing the joint account owner’s interest in the funds to survive the withdrawal is consistent with the Second DCA’s limited holding in Medley. As with the funds at issue in Medley, the funds in De Soto were still in the possession or under the direction of the withdrawing joint tenant.
While the Second and Third DCAs have, in effect, extended the nonsever- ability concept, normally associated only with TBE accounts, to JTWROS accounts, at least with regard to wrongful withdrawals from such accounts, the Fourth DCA in Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995), has criticized such an extension as blurring the distinction between the two forms of ownership. See also Katz v. Katz, 666 So. 2d 1025, 1027 (Fla. 4th DCA 1996).
• Sitomer v. Orlan: Spouse May Recover Funds in Hands of Third Parties Only Where Funds Were Withdrawn From TBE Account
In Sitomer, Richard Orlan, the appointed guardian of his mother, Belle, brought an action on her behalf to recover from the siblings of her deceased second husband, Irving Sitomer, the money withdrawn by him from certain of the couple’s joint accounts. The accounts were titled “Irving Sitomer or Belle Sitomer” and were designated as “Joint Accounts With Rights of Survivorship” on the signature cards. Mr. Sitomer deposited the funds he had withdrawn from the joint accounts in accounts titled either in his name or in trust for his siblings. After his death, the money contained in the “trust” accounts was distributed to his siblings. However, Richard Orlan obtained a judgment at the trial court level allowing him to assert his mother’s ownership interest in those funds. This judgment was based on the trial court’s instruction to the jury, which in turn was based on the Medley decision, that if the couple had created joint accounts with rights of survivorship, then the transferred funds could be recovered from the third parties.
The Fourth DCA, in reversing the final judgment and remanding the case to the trial court, held that the continuation of an interest in account funds after the unauthorized withdrawal is a feature unique to the TBE. Id. at 1112. The court observed that the important attribute separating a JTWROS from a TBE is that in a TBE, neither spouse may sever or forfeit any part of the estate without the assent of the other, so as to defeat the right of the survivor, whereas, a JTWROS may be terminated by a joint tenant’s conveyance of an interest to a stranger, which destroys the unities of possession and title. Id. at 1113-14.
Thus, the court reasons, where an account owner withdraws funds from a JTWROS account, he or she terminates the joint tenancy nature of the funds and severs the right of survivorship as to the funds withdrawn, id. at 1114, where, on the other hand, an account owner withdraws funds from a TBE account, the nonseverability concept of the TBE preserves the right of the nonwithdrawing spouse to the whole of the account funds. Id. at 1114. Thus, the court concludes that only where a TBE has been created may a spouse recover funds transferred to a third party by the other spouse without the former’s consent. Id.
Of course, this proposition is not entirely inconsistent with the Medley holding, in that, the court in Medley refused to consider whether a joint account owner’s interest in account funds would survive the withdrawal and transfer of those funds by the other owner to a third party. Rather, the court in Medley merely held that, in the context of a surcharge action, the joint account owner’s interest in JTWROS account funds survives their withdrawal by the other owner, at least where the latter retains some control over the funds. However, the court in Sitomer, while noting that a withdrawing joint tenant is still liable and accountable to the other joint owner for that person’s share, clearly disagrees with the proposition reflected in the Medley decision that a joint tenant’s interest in account funds follows the funds when withdrawn by the other joint tenant even where the funds remain in the latter’s control. Sitomer, 660 So. 2d at 1114, n.3; Katz, 666 So. 2d at 1027.
In sum, a surviving spouse attempting to recover joint account funds withdrawn and appropriated by the deceased spouse without the surviving spouse’s knowledge or consent may, if he or she brings the action in a circuit appealable to the Second or Third DCAs, recover one-half the withdrawn funds without having to establish that the account was held by the couple as TBE, provided, however, the funds remained within the control of the deceased spouse. However, in the Fourth DCA, a surviving spouse may not recover withdrawn joint account funds unless he or she establishes that the funds came from a TBE account.
Short of legislative reform, banks should, as a matter of practice, require married couples opening joint accounts to explicitly declare on the signature card whether the account is to be held as TBE. However, although this would save the fact-finder in future cases from having to consider the facts surrounding the opening of an account in order to determine whether a couple intended a TBE, the fact-finder would still have to struggle with the very fact-sensitive “form” and “knowledge and consent” prongs of the TBE/Tracing Analysis. In addition, because of the split of authority on tracing withdrawals from JTWROS accounts, the difficulty of applying the JTWROS and TBE concepts to such a fluctuating type of intangible personal property, the evidentiary concerns raised by the “absence of knowledge” prong of the two-part TBE/Tracing Test, and the fact-sensitive rules the courts have developed in determining the interests of spouses in joint account funds, the state of morass in this area of the law is not likely to be improved in the near future. q
1 5 Fla. Jur. 2d, Banks, §144.
3 Id. §145.
4 Id. §152.
5 12 Fla. Jur. 2d, Cotenancy & Partition, §6; Kozacik v. Kozacik, 26 So. 2d 659, 661 (Fla. 1946).
6 12 Fla. Jur. 2d, Cotenancy & Partition, §8.
7 Black’s Law Dictionary 1140 (6th ed. 1990).
8 12 Fla. Jur. 2d, Cotenancy & Partition, §16; Bailey v. Smith, 103 So. 833, 834 (Fla. 1925); Strauss v. Strauss, 3 So. 2d 727, 728 (Fla. 1941); Andrews v. Andrews, 21 So. 2d 205, 206 (Fla. 1945).
9 12 Fla. Jur. 2d, Cotenancy & Partition, §13; Bailey, 103 So. at 834; Strauss, 3 So. 2d at 728; Andrews, 21 So. 2d at 206.
10 12 Fla. Jur. 2d, Cotenancy & Partition, §16.
11 Supra note 7, at 1145.
12 12 Fla. Jur. 2d, Cotenancy & Partition, §20; Bailey, 103 So. at 834.
13 12 Fla. Jur .2d, Cotenancy & Partition, §19; Sitomer v. Orlan, 660 So. 2d 1111, 1114 (Fla. 4th D.C.A. 1995).
14 12 Fla. Jur. 2d, Cotenancy & Partition, §23.
16 John M. Starling, The Tenancy by the Entireties in Florida, 14 U. Fla. L. Rev. 111, 116-17 (1961); In re Lyons Estate, 90 So. 2d 39, 42 (Fla. 1955); First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777, 780 (Fla. 1971).
17 Starling, supra note 16.
Carlos A. Rodriguez is an associate in the Tampa law firm of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, P.A. He received his B.A., cum laude, in business administration from the University of South Florida, his J.D., with honors, from the Florida State University College of Law, and his LL.M. in taxation from the University of Florida Graduate Tax Program. Mr. Rodriguez practices in the areas of federal and state taxation, estate planning, and estate and trust administration.