Complete Guide to Joint Bank Accounts in Florida

Bank Account Titling – Tenancy by the Entireties, Joint With Right of Survivorship, Convenience Accounts and Why it Matters

How a bank account is titled can have important, and in some cases, life changing ramifications, in terms of creditor protection and inheritance rights.

What Is A Tenancy By the Entirety Account?

Under Florida law, if a bank account is a tenancy by the entirety account, one spouse may not transfer money from the account without the consent of the other spouse. Beal Bank v. Almand, 780 So. 2d 45, 53 (Fla. 2001).

What Is A Joint Tenancy With Right of Survivorship Account?

If a bank account is joint tenancy with right of survivorship, either joint owner can transfer funds out, and a “joint owner’s withdrawal of funds from a joint bank account terminates the ‘joint tenancy nature of the [funds] and severs the right of survivorship as to the funds withdrawn.” Sitomer v. Orlan, 660 So. 2d 1111, 1114 (Fla. 4th DCA 1995).

What is a Convenience Account?

A convenience account is a form of bank account where someone other than the owner has the right to transact on the account, but does not become the owner of the account on the death of the owner.

What is a Pay on Death Account?

A pay on death account, also known as a transfer on death account, is a form of titling where someone becomes the owner of an account upon death, but has no right to transact on the account during the lifetime of the owner of the account.

Why Does the Titling of Bank Accounts Matter?

Wexler v Rich

In Wexler v. Rich (Fla. 4th DCA February 22, 2012), Donald Rich (deceased) opened two bank accounts in his name. Several months later, both accounts were converted into multi-party accounts with his spouse, Miriam. The bank’s forms to open the new accounts contained options for “Ownership of Account,” two of which were “Multiple-Party Account” and “Multiple-Party Account – Tenancy by the Entireties.”

The bank employee assisting Miriam and Donald checked the “Multiple-Party Account” option, and selected “Multiple-Party Account with Right of Survivorship” for the beneficiary designation. The bank employee selected the “Multiple-Party Account” option because Miriam and Donald did not request a tenancy by the entireties account. The bank employee did not discuss a tenancy by entireties form of ownership with Miriam and Donald. Miriam and Donald reviewed the agreements with the bank employee for accuracy and then each signed each form at the bottom.

After the new accounts were established, Donald took the money from the two accounts and put it into a new account in Donald’s name alone. Donald then transferred ownership of the new account into the name of his revocable trust. After Donald’s death, Miriam insisted that she was entitled to the funds from the two accounts jointly titled with her deceased husband. The Florida probate court agreed with her, as summed up by the appellate court’s opinion:

Relying on Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001), the circuit judge held that Miriam was entitled to recover $210,956.10, because the Bank United accounts were tenancies by the entirety, entitling Miriam to assert a claim over the funds in the possession of the revocable trust. The trial judge found that there was “no express disclaimer of the tenancy by the entirety designation” under Beal Bank, because “there was no discussion of options, no mention of the choices one would have when opening this account and no initials placed next to the form of ownership selected” by Miriam and Rich “to express what they knowingly intended.”

The appellate court disagreed and reversed the Florida probate court. First, relying on Beal Bank, the appellate court found that Miriam and Donald expressly disclaimed the tenancy by the entireties account status. The Florida Supreme Court in Beal Bank has identified two ways of disclaiming a tenancy by the entireties account status, one being an express statement that tenancy by the entireties was not intended, and two being:

[I]f the financial institution affirmatively provides the depositors with the option on the signature card to select a tenancy by the entireties among other options, and the depositors expressly select another form of ownership option of either a joint tenancy with right of survivorship or a tenancy in common.

Miriam and Donald disclaimed the tenancy by entireties account status in the second express way, because the account opening document provided by the bank contained the option of tenancy by the entireties, but Miriam and Donald expressly chose another option.

Bank Has No Duty To Explain Tenancy By The Entirety vs. Other Account Titling Options

Second, the appellate court found that the bank employee had no duty to discuss or explain account ownership options with Miriam and her husband, stating that: “Only a handful of attorneys in Florida are able to describe the differences between a tenancy by the entirety bank account and a joint account with right of survivorship.” The bank only had to provide the account ownership options, not the explanation or assistance to make a considered choice.

The key point to take away from Wexler v. Rich is that if you and your spouse are creating a joint account, make sure you are informed about the difference between a tenancy by the entirety account and a joint tenancy with right of survivorship account. The bank does not have to explain it or even discuss the difference between the types of accounts with you.

The Florida probate court will look to the account opening card to determine the nature of the account. The account opening form determined Miriam’s fate, because Miriam and Donald were provided the option of choosing to establish a tenancy by the entirety account, but expressly selected another option. If a tenancy by the entirety option had not been provided on the account opening form, a presumption would have arisen that the bank account was held as a tenancy by the entirety account.

The appellate court also commented on the applicability of an amendment to Florida Statute section 655.79(1) (2009), which became effective on October 1, 2008. The 2008 amendment provides that “[a]ny 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.” Although the application of section 655.79(1) was not argued in Wexler, the appellate court noted that if section 655.79(1) were to apply, the:

[S]igned account agreements containing the option of a tenancy by the entireties and designating the accounts as “Multiple-Party Account[s] with Right of Survivorship” would satisfy the statutory requirement that an alternative form of account ownership be ‘specified in writing.’

Versace v. Uruven

In Versace v. Uruven LLC, an October 12, 2022 opinion, the Florida Fourth District Court of Appeal followed established Florida law that all spousal bank accounts are considered as held as tenants by the entireties unless otherwise specified in writing, and thus are out of reach of creditors of one spouse in most situations.Appellee obtained a judgment against appellant and secured the issuance of a writ of garnishment against Bank of America, claiming that appellant had accounts with the bank. The bank answered that it had three accounts in appellant’s name, among others, including an account in the name of appellant and his wife. The bank set aside the monies in the account in appellant’s and his wife’s name subject to the writ.

Appellant filed a claim of exemption and motion to dissolve the writ as to that account, claiming that the account was held as tenants by the entireties. Appellee responded that the account did not meet the six unities of title necessary to be a tenancy by the entireties account. Specifically, appellee asserted the account lacked the unity of time, because the account was originally opened by the wife alone. Not until a few years later did appellant and the wife sign a new signature card, which expressly stated that the account was held as tenants by the entireties.

The court held a hearing and then granted the writ of garnishment as to all accounts, thus rejecting appellant’s claim of exemption for the account designated by the signature card to be held by appellant and the wife as tenants by the entireties. Appellant appealed this order.

A Bank Account Held As Tenants By the Entireties Cannot Be Garnished By a Creditor Of One Spouse

The type of account held by a husband and wife determines whether it can be garnished by a creditor of either. Because a tenancy by the entirety belongs to neither party, but “each spouse is seized of the whole,” see Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 (Fla. 2001), it cannot be garnished by a creditor of one spouse.

However, in a joint tenancy with right of survivorship each party owns his or her separate share of the property such that a creditor of one joint owner may attach that owner’s share of the account to satisfy that owner’s debt. Id.

Two Rules Established By the Florida Supreme Court In Beal Bank

There are two basic rules that the Florida Supreme Court decision of Beal Bank established with respect to accounts held by spouses.

Rule One: Tenants By the Entireties Ownership Presumed

First,

[A]s between the debtor and a third-party creditor (other than the financial institution into which the deposits have been made), if the signature card of the account does not expressly disclaim the tenancy by the entireties form of ownership, a presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship. The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created.

Rule Two: Signature Card Controls

Second, with respect to an express designation on a signature card that the account is held as a tenancy by the entirety:

Although we recede from Hector Supply Co., we agree with the statement in Hector Supply Co. that an express designation on the signature card that the account is held as a tenancy by the entireties ends the inquiry as to the form of ownership. Hector Supply Co., 254 So. 2d at 781. Following Hector Supply Co., other courts have excluded extrinsic evidence where the account documents clearly indicated the legal form of ownership. See Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436, 437 (Fla. 4th DCA 1999) (holding that extrinsic evidence is inappropriate when both husband and wife signed the signature card, which specifically and clearly designated the account as one held as tenants by the entireties); Sheeler v. United States Bank of Seminole, 283 So. 2d 566, 566 (Fla. 4th DCA 1973) (holding no further inquiry necessary where clear from the terms of the bank signature card that an estate by the entireties was expressly created).

Florida Statute Section 655.79: Tenants By The Entireties Presumed

In a footnote in Beal Bank, the court suggested to the Legislature that it enact a statutory presumption of tenancy by the entirety in bank accounts held in the name of two spouses. 780 So. 2d at 62 n.24. The Legislature did more than that in in 2008 by amending section 655.79(1), Florida Statutes, to provide:

“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.” Thus, consistent with Beal Bank, an express designation of an account as a tenancy by the entireties would create a tenancy by the entireties as a matter of statutory law, regardless of the presence or absence of the common law requirements of unities.

Thus, the court made a clear distinction between accounts which state expressly they are held as tenants by the entirety and ones that do not, and only those that do not have an express designation require an examination of the unities in the formation of the account. Of course, section 655.79(1) now eliminates even that showing, as all spousal bank accounts are considered as held by tenancies by the entireties unless otherwise specified in writing.

The Florida appellate court reversed the trial court, stating:

We agree with appellant that Beal Bank controls. Beal Bank held that where a bank signature card expressly designates the account as held as tenants by the entireties between husband and wife, this “ends the inquiry as to the form of ownership.” 780 So. 2d at 60. Thus, appellant and his wife’s account held expressly as tenants by the entireties is not subject to garnishment for the judgment against appellant. We reverse.

Can I Challenge a Pay On Death Designation On The Grounds of Undue Influence?

Yes you can. Trusts, beneficiary designations and any other testamentary instruct can be challenged under the reasoning and logic of the seminal Florida Supreme Court case of Estate of Carpenter. The reasoning in Carpenter, if “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises” applies to challenges to pay-on-death designations, testamentary transfers and “will substitutes” as well.

There is a public policy interest in preventing “abuse of fiduciary or confidential relationships” which has been codified through statute and case law. See, e.g., Fla. Stat. § 733.107 (implementing public policy against abuse of fiduciary or confidential relationships).

See the complete guide on pay on death litigation for bank accounts. Also see what a Florida inheritance litigation lawyer can do for you.

What Other Grounds Can I Use To Challenge A Pay On Death Designation?

A pay-on-death designation (“POD”), Totten trust, transfer-on-death provision, and other “will substitutes” may be invalidated for undue influence, fraud, duress, and overreaching. For example, a POD designation does not transfer ownership of funds until the death of the account holder. Although a POD designation has similar attributes of a testamentary transfer, Florida law considers a POD designation as an inter vivos transfer or gift.

Any property to which the estate has a claim is subject to a challenge in a probate court, including inter vivos gifts. See Laushway v. Onofrio, 670 So. 2d 1135, 1136 (Fla. 5th DCA 1996). In Laushway, the Fifth District held that the probate court had jurisdiction to entertain a challenge to an inter vivos gift procured by undue influence. Id.

In a 2015 case, the First District affirmed a trial court’s invalidation of a POD designation for undue influence. Keul v. Hodges, 180 So. 3d 1074 (1st DCA 2015). In Keul, the Court relied on the policy enunciated in Fla. Stat. § 733.107 and In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971), in order to hold that a POD designation may be challenged on grounds such as “undue influence, fraud, duress, and overreaching,” thereby answering the question of how to challenge a pay on death designation in Florida.

Keul string-cites a litany of examples where Florida courts have found that inter vivos transfers are subject to challenges on these grounds:

See, e.g., Cripe v. Atl. First Nat’l Bank of Daytona Beach, 422 So. 2d 820, 823 (Fla. 1982) (finding a joint account invalid as the result of undue influence); Estate of Kester v. Rocco, 117 So. 3d 1196, 1200 (Fla. 1st DCA 2013) (applying undue influence analysis to ownership of POD accounts, among others); Laushway v. Onofrio, 670 So. 2d 1135, 1136 (Fla. 5th DCA 1996) (holding probate court had authority to invalidate inter vivos gifts procured by undue influence); Fogel v. Swann, 523 So. 2d 1227, 1229 (Fla. 3d DCA 1988) (holding that Carpenter applies to inter vivos transfers); Majorana v. Constantine, 318 So. 2d 185, 186 (Fla. 2d DCA 1975) (applying will contest principles to inter vivos gifts); Pate v. Mellen, 275 So. 2d 562, 565 (Fla. 1st DCA 1973) (On Petition for Rehearing) (holding that Carpenter applied to dispute about validity of decedent’s signatures on inter vivos gifts).

Kuehl, at *5-6. In affirming the trial court’s conclusion that the POD designation was procured by undue influence, the First District voided the gift and ordered the return of the funds to the estate.

Florida Probate Court Jurisdiction

In Florida, the probate court has jurisdiction over the estate of the decedent. Section 731.105 of the Florida Probate Code provides that “[p]robate proceedings are in rem proceedings.” To challenge a pay on death designation you need to obtain jurisdiction over the person who has the funds that should be in the estate.

A distributee who improperly received estate assets or funds may be compelled to return the assets or funds to the estate. See Fla. Stat. § 733.812. “Formal notice shall be sufficient to acquire jurisdiction over [the distributee] receiving formal notice to the extent of the person’s interest in the estate.” Fla. Stat. § 731.301(2).

What Happens if One Joint Owner Steals the Joint Bank Account?

A growing area of inheritance litigation is sibling feuds over bank accounts jointly titled in the names of a decedent’s children. In a common fact pattern, one sibling absconds with the account after the parent’s death and refuses to share the account with the other joint account owners. Fortunately, Florida law provides a remedy to the joint account holders who are victimized by this conduct.

Florida’s Civil Theft statute affords a Plaintiff the opportunity to augment his or her recovery three-fold based on the availability of treble damages and attorney fees. Pursuant to Section 772.11, Florida Statutes, civil theft claims may be asserted by an individual to impose civil liability upon another for criminal practices (e.g., robbery, crimes of theft, and exploitation of elderly persons). While enticing on the damages front, it is important to garner an understanding of the intricacies of this statute and its proof and notice requirements before asserting the claim.

Safe-Harbor Provision: Prior to filing a lawsuit alleging civil theft, a party must serve a demand letter alleging the treble damage of the claim. The recipient of this pre-suit demand letter has thirty (30) days from the date of receipt of the letter to pay the money to avoid further civil liability. Should the recipient pay the treble damages alleged, a written release of the claim shall be provided by the person making the written demand.

Felonious Intent: An additional prerequisite for a civil theft cause of action is that the Plaintiff must plead and prove that the defendant acted with “felonious intent to steal.” If the pleading fails to allege “felonious intent to steal,” a civil theft cause of action fails. Pursuant to section 812.014(1), Florida Statutes, “theft” is defined as follows:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Proof: Unlike many other civil causes of action which rely upon a preponderance of the evidence standard of proof, civil theft claims in Florida require a showing of “clear and convincing evidence.” To better aid your understanding, this standard lies somewhere in between the preponderance of evidence and beyond a reasonable doubt standards. In Slomowitz v. Estate of Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) the District Court of Appeal for the Fourth District held that the “the clear and convincing evidence [standard] requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” By way of example, civil theft claims are often asserted with claims for conversion, which is defined as the wrongful dominion or control over property to the detriment of the rights of the actual owner. In a conversion claim, the Plaintiff need only establish his or her claim by the “preponderance of the evidence.”

Statutory-Caution on Unsubstantiated Allegations: Civil theft claims should be initiated and handled with caution. As provided by statute, the defendant is “entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support.”

As noted above, a party pursuing a civil theft claim should gain a full understanding of this cause of action. If such a claim is unsuccessful, they may be liable for the other party’s reasonable attorney’s fees and costs.

Columbia Bank v. Turbeville

In Columbia Bank v. Turbeville, grandmother and her son opened five bank accounts with approximately $1.2 million of grandmother’s and son’s money. To assist them in managing the accounts, they added granddaughter as a joint account holder for this purpose. Granddaughter contributed none of the funds, and there was no indication that adding her name to the accounts was intended to be a gift to her. After the son died, the accounts were transferred into new joint accounts between grandmother and granddaughter.

At some point, grandmother became suspicious about her granddaughter’s intentions and went to a branch of the bank (where granddaughter did not work) and asked that the funds, at this point over $1.3 million, be transferred into accounts with just grandmother’s name on the accounts. A bank employee told grandmother that she could not transfer the money into accounts with just her name on the accounts, and that she had to comply with certain other conditions before being able to withdraw funds or close the accounts. The bank employee then said she would freeze the accounts until the granddaughter’s status as a joint account holder was resolved.

Instead of freezing the accounts immediately, the bank employee called granddaughter, who was also an employee of the bank. Granddaughter, at her branch, instructed a teller to prepare a cashier’s check payable to granddaughter in the amount of approximately $670,000. Granddaughter deposited these funds into her own account in her name only.

Grandmother sued the bank for the return of the funds. The bank paid grandmother $1.1 million. The appellate opinion does not give any details as to why the bank apparently paid more than the amount withdrawn, but must have included interest, attorney fees, and possibly other damage amounts – in other words a total and complete victory for grandmother over the bank. At first, this is a surprising result, because banks are strongly protected from the joint account holder of joint bank accounts.

Florida Joint Bank Account Statute 655.78

The Florida joint bank account statute, section 655.78, provides as follows.

655.78 Deposit accounts in two or more names.—

(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons may be paid to, or on the order of, either or any of such persons or to, or on the order of, the guardian of the property of any such person who is incompetent, whether the other or others are competent. The check or other order for payment to any such person or guardian is a valid and sufficient release and discharge of the obligation of the institution for funds transferred thereby.

Granddaughter removed funds from the bank account. Under the joint bank account statute, the bank would normally have no liability, because any joint holder may remove funds without the bank having any liability to determine the rights between the joint account holders. The appellate opinion does not explain, but we can speculate. When grandmother went to the bank to remove granddaughter’s name from the accounts, she had an absolute right to do so. The refusal to allow grandmother to change the title of the accounts, coupled with a bank employee tipping off granddaughter about what grandmother was doing, must have created a very strong case for grandmother against the bank.

In settling with the bank, grandmother assigned all of her rights in the amounts removed to the bank, so that the bank could sue the granddaughter for the return of the funds. The trial court granted a motion to dismiss the bank’s three count complaint against the granddaughter (now a former employee of the bank). In reversing, the appellate court gave a detailed road map as to the claims that could be properly brought against the granddaughter, as follows.

Equitable Subrogation

An equitable subrogation claim places one party into the shoes of another so that the substituting party retains the rights and remedies that would otherwise belong to the original party. The claim is appropriate when five elements are met:

made the payment to protect its own interest,
did not act as a volunteer,
was not primarily liable for the debt,
paid off the entire debt, and
works no injustice to the rights of a third party by its equitable subrogation claim.

The court held that all of the elements were present here. Granddaughter tried to rely on the Florida joint bank account statute, which might have protected the bank from the claims of grandmother, to contend that the bank had no liability and hence no interest to protect (the first element). The court did not elaborate on why it rejected this claim, other than to state that sufficient facts were pled. We can speculate that the bank could have been exposed to liability, in spite of the statute, when its employees acted improperly when grandmother attempted to take sole control of the accounts and her attempts were rejected. The fact that the bank paid out over $1 million to grandmother is pretty good evidence of the bank’s interest and exposure in the matter.

Conversion Claim

When grandmother assigned her claims against granddaughter to the bank, the bank then possessed a conversion claim against granddaughter for the wrongful taking of the funds from the joint account. Even though the Florida joint bank account statute protects a bank from the claims of joint account holders who allege wrongful withdrawals by the other joint account owners, that statute does not protect the joint bank account holders from claims against each other.

The Bank’s allegations are sufficient to demonstrate that [grandmother] owned all of the funds, intending that [granddaughter] have access to the funds only for [grandmother’s] benefit, such that the withdrawal of the funds at issue was an unauthorized act. [Granddaughter] argues that insufficient facts were alleged to support that she failed to return the funds after a demand was made for their return.

Breach of Fiduciary Duty

The bank claimed that granddaughter held a position of trust and confidence with grandmother that included a fiduciary duty not to withdraw or transfer the funds wrongfully. The bank alleged that the granddaughter breached these duties through her actions.

Granddaughter made a creative argument in response – that the breach of fiduciary duty claim cannot be assigned because the services provided to grandmother were “personal services.” The Florida Supreme Court, in Wachovia v. Toomey, 994 So.2d 980 (Fla. 2008) held that a breach of fiduciary duty that is intensely personal cannot be assigned, while more commercial breach claims can be assigned. The appellate court easily concluded that:

The contractual relationship between Ms. Pueschel and Ms. Turbeville—even if between grandmother and granddaughter—was first and foremost that of a bank employee with a fiduciary responsibility to ensure the safekeeping of Ms. Pueschel’s monies.

The reversal of the dismissal means that the granddaughter will now have to fully defend herself from the allegations raised against her. Ultimately, that could result in a jury trial of the issues raised.

Wallace v. Torres-Rodriguez

In Wallace v. Torres-Rodriguez, a May 11, 2022 opinion from the Florida Third District Court of Appeal, the court determined that where a husband transferred assets to his girlfriend without his wife’s consent, a constructive trust was the proper remedy to recover wrongfully transferred tenancy by the entireties assets, and that the girlfriend’s “change in position” defense did not prevent the imposition of the constructive trust.

In 2010, Milton Wallace was diagnosed with a degenerative neurological condition that diminishes memory and mental capacity. Milton’s wife, Patricia, advised their estate planning attorney that Milton and Patricia wanted to make estate planning arrangements to protect their marital assets, worth millions of dollars. Patricia was worried that Milton would deteriorate and that his judgment and capacity to handle their financial affairs would be affected, and also that Milton could be unduly influence by third persons to convey their marital assets.

The Irrevocable Trust

Milton and Patricia signed an irrevocable trust (“Irrevocable Trust”) which stated:

We intend to enter into a marital agreement after the execution of this trust agreement. Our marital agreement will provide that upon the death of the first one of us to die, all assets of any nature (including our residence) owned by us as tenants by the entirety or as joint tenants with right of survivorship, wherever located, will be conveyed by the survivor of us to the trustee of the trust created by this trust agreement. We are executing this agreement to set forth the terms of the trust upon which those jointly owned assets will be held when conveyed by the survivor of us to the Trustee.

The Marital Agreement

Milton and Patricia then signed a marital agreement (“Marital Agreement”) which stated that the surviving spouse was required to convey all of the couple’s joint marital assets into the Irrevocable Trust within sixty days of the spouse’s death. Critically, the Marital Agreement also prohibited either spouse from transferring joint marital assets while they were alive without the “direct and personal joinder” of the other spouse. Except for Milton’s IRA, all of the parties’ marital assets were owned as tenants by the entireties.

In addition, Section 1 of the Marital Agreement granted authority:

to allow the successor trustees and beneficiaries under the Trust Agreement to be able to bring whatever legal proceedings may be necessary to require the survivor of us to convey all of our jointly owned assets to the then serving trustee or trustees under the Trust Agreement, and to rescind any transfers of assets that might be made by the survivor of us contrary to the requirements of this Marital Agreement.

Patricia Dies

Patricia died in 2016, and the couple’s son, Mark, became the personal representative of her estate. A few days after Patricia’s death, Milton told Mark that while he was married to Patricia, he had a girlfriend, Yanelin, for approximately 14 years before Patricia’s death. Milton told Mark that he paid Yanelin for sex and admitted that he transferred millions of dollars of joint marital assets to her.

Mark sued Yanelin to recover millions of dollars that Milton had given to Yanelin without Patricia’s consent and in contravention of the Irrevocable Trust and Marital Agreement, including claims for constructive fraud, avoidance of fraudulent transfers, aiding and abetting breach of fiduciary duty and aiding and abetting fraudulent transfers, and imposition of a constructive trust.

The Transfers of Tenancy By the Entireties Assets

The evidence at trial demonstrated that Milton had used tenancy by the entireties assets to purchase three condominiums in Yanelin’s name and stocks worth millions in Yanelin’s name, including:

A $105,000 condominium
$2.0 million in cash
Stocks worth $1.2 million on Deposit at Fidelity
2,000 shares of Exxon Mobil Stock
A $220,000 condominium
Merrill Lynch Securities Account
$975,000 in cash and a $510,000 Condominium
$14,000 in cash

Yanelin testified that all of the transfers were gifts. Milton conceded that Patricia did not directly or personally join with him in making any transfers of the marital assets to Yanelin.

The Trial Court

The Florida trial court found that all the assets accessed by Milton to make transfers to Yanelin came from the Wallace’s joint marital assets that were owned by Milton and Patricia as tenants by the entireties. The trial court also found that Milton conceded at trial that Patricia did not directly and personally join with him in making any transfers of joint marital assets to Yanelin. The trial court wrote in its order:

The burden is on the recipient of the property to establish the consent of the other spouse. . . . [T]he case at bar does not involve a “Grande” from Starbucks. It involves millions of dollars given by a married man to his mistress. Here consent is not reasonably implied but must be proved. Because Yanelin cannot carry the burden to prove that those millions of dollars were given with Patricia’s consent, Yanelin was unjustly enriched and equity will impose a remedy in the form of a constructive trust.

* * *

To recap: Over the course of a decade and a half, Milton Wallace gave millions of dollars in money and property to Ms. Torres-Rodriguez, with whom he was carrying on a romantic liaison. The money and property was held in tenancy by the entireties by Milton and his late wife Patricia. Without Patricia’s consent to these gifts, which consent I found that Ms. Torres-Rodriguez had not established by clear and convincing evidence, Milton had no legal right to give them and Ms. Torres-Rodriguez no legal right to receive and retain them.

* * *

Milton Wallace’s transfer of funds and assets to Yanelin Torres-Rodriguez was wrongful, and he knew it. Yanelin Torres-Rodriguez’s receipt and retention of those funds and assets was wrongful, whether or not she knew it. Ms. Torres-Rodriguez has been unjustly enriched. The trial court found that Mark had made a showing for imposition of a constructive trust because Yanelin was unjustly enriched by Milton’s transfers.

However, the court also concluded that Yanelin had changed her position in reliance on Milton’s support, and refrained from finding whatever employment she would otherwise have been obliged to find. The court allowed Yanelin to keep three out of the seven contested marital assets, or about $1.7 million of the transferred assets. Both Mark and Yanelin appealed.