STATE OF FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, ET AL., APPELLANTS (DEFENDANTS),
v.
MARY SUE LOWERY, APPELLEE (PLAINTIFF)
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Florida appeals court affirms that when property held as a tenancy by the entirety is conveyed from husband to wife as part of a divorce settlement, the wife takes the entire estate free of any judgments or liens previously filed against the husband. The conveyance has the same legal effect as the husband's death, cutting off creditors' claims.
Yes. The conveyance by the husband to the wife pursuant to the divorce settlement terminated the tenancy by the entirety and vested the entire estate in the wife free of the husband's creditors' claims, because the husband had no attachable interest remaining after the conveyance.
[1] A conveyance of a husband's interest in property held as an estate by the entireties to his wife terminates the estate by the entirety.
[2] A conveyance of a husband's interest in property held as an estate by the entireties to his wife vests the entire estate in the wife.
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Join FLexlaw to unlock all legal intelligence“WHERE PROPERTY IS HELD AS AN ESTATE BY THE ENTIRETIES, DOES THE CONVEYANCE OF THE HUSBAND'S INTEREST TO THE WIFE HAVE THE SAME LEGAL EFFECT AS THOUGH THE HUSBAND HAD DIED, THUS ALLOWING THE WIFE, AS THOUGH A SURVIVOR, TO TAKE THE ENTIRE ESTATE FREE OF THE CLAIMS OF THE HUSBAND'S CREDITORS?”
States the controlling legal question presented by the parties, to which the court answers affirmatively.
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Join FLexlaw to unlock all legal intelligenceLowery and her former husband owned property in Volusia County as tenants by the entirety. During the marriage, multiple judgments and liens were file…
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MILLS, Judge.
The defendants appeal from a final judgment rendered in favor of the plaintiff following a nonjury trial in a quiet title suit.
The parties to this appeal agree that the question before us is:
WHERE PROPERTY IS HELD AS AN ESTATE BY THE ENTIRETIES, DOES THE CONVEYANCE OF THE HUSBAND’S INTEREST TO THE WIFE HAVE THE SAME LEGAL EFFECT AS THOUGH THE HUSBAND HAD DIED, THUS ALLOWING THE WIFE, AS THOUGH A SURVIVOR, TO TAKE THE ENTIRE ESTATE FREE OF THE CLAIMS OF THE HUSBAND’S CREDITORS?
Under the facts in this case, the answer is yes.
Lowery and her former husband owned property in Volusia County as tenants by the entirety. During their marriage, numerous judgments and claims of lien were filed against the husband including those of the defendants. The property was not homestead.
On 5 October 1967, Lowery and her former husband entered into a stipulation in anticipation of divorce, by which the husband agreed to convey to Lowery the property in dispute. This stipulation was incorporated in the final judgment of divorce rendered on 31 October 1967.
On 24 October 1967, Lowery’s former husband executed and delivered a quitclaim deed to the property to Lowery. This deed was recorded on 3 November 1967.
On 10 April 1974, Lowery filed a quiet title suit contending that the judgments and liens of the defendants were clouds on her title.
The defendants concede that so long as property is held as an estate by the entir-eties, a judgment or lien against one spouse only cannot attach to the property. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920).
Defendants concede also that under Section 689.11, Florida Statutes, a conveyance by husband to wife without joinder of the wife is as valid as if the parties were unmarried. Such a conveyance terminates an estate by the entirety and vests the entire estate in the wife. Hunt v. Covington, 145. Fla. 706, 200 So. 76 (1941).
In addition, it is settled that a transfer is not in fraud of creditors where it is part of the settlement of property and rights of alimony and support incident to a divorce, particularly where the settlement is adopted and incorporated in the divorce decree. Trueman Fertilizer Co. v. Stephan, 111 Fla. 207, 149 So. 349 (1933).
Defendants concede that there is no attachable interest as long as the tenancy by the entirety continues. They also concede that death terminates the tenancy without benefiting the creditors. It is unchallenged that the conveyance was based on a bona fide agreement ratified and adopted by the court.
Defendants seek something to which they never had any right. The conveyance and the judgment took that right away.
Under the facts in this case, the trial court correctly held that the convey- anee by the former husband to Lowery terminated the estate by the entirety; therefore, when the final judgment of divorce was signed, the former husband had no interest to which any judgment or lien could attach.
The judgment is affirmed.
BOYER, C. J., and McCORD, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pierce Liberman and Mitchell M. Murch v. Kelso, 354 So. 2d 137 (Fla. 2d DCA 1978)…orida Statutes (1963) for the “twinkling of an eye” thereby subjecting his interest to the mortgage lien before the wife obtained full title. [*139] More recently, the court in State Department of Commerce, Division of Employment Security v. Lowery, 333 So. 2d 495 (Fla. 1st DCA 1976), reached the opposite conclusion. There, a man against whom several judgments had been entered owned property with his wife as tenants by the entireties. In anticipation of divorce, they entered into a property settlement agreeme…
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Sharp v. Magali C. Hamilton, 520 So. 2d 9 (Fla. 1988)…eived title to the property free and clear had she survived her husband while they were still married, or if he had by quit-claim deed transferred title to her prior to dissolution, State Dept. of Commerce, Division of Employment Security v. Lowery, 333 So. 2d 495 (Fla. 1st DCA 1976), cert. denied, 344 So. 2d 327 (Fla.1977) and Jonas v. Logan, 478 So. 2d 410 (Fla. 3d DCA 1985); or if she and Mr. Hamilton, in anticipation of divorce, had reached a property settlement agreement later incorporated into the final…
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Holt v. Boozel, 394 So. 2d 226 (Fla. 5th DCA 1981)…quity interest of the wife in the property had been acquired during the marriage and prior to the dissolution. Two cases more recent than Hillman support the arguments of the appellee: State Dept. of Commerce, Div. of Employment Security v. Lowery, 333 So. 2d 495 (Fla.1st DCA 1976), cert. denied, 344 So. 2d 327 (Fla.1977), and Liberman v. Kelso, 354 So. 2d 137 (Fla.2d DCA 1978). In Lowery it was held that the conveyance by the husband of his interest in an estate by the entirety to his wife pursuant to a pr…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Ohio Butterine Co. v. Hargrave, 79 Fla. 458 (Fla. 1920)
- Hunt v. Mrs. Nannie L. Covington, 145 Fla. 706 (Fla. 1941)
- Trueman Fertilizer Co. v. Stephan, 111 Fla. 207 (Fla. 1933)