“Make everything TBE!” This pearl of wisdom was offered to me by a bankruptcy trustee shortly before my nuptials. TBE—or more properly stated, tenancy by the entireties—is a form of shared property ownership in Florida and other jurisdictions that is unique to married couples. What makes TBE property special is that “when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse, see Beal Bank v. Almand & Associates, 780 So. 2d 45, 53 (Fla. 2001). Accordingly, the ability of a married couple to claim property as TBE can be kryptonite for their individual creditors.

When it comes to bank accounts, “jointly titled marital bank accounts are presumed to be tenancy by the entireties if the 'six unities' of marriage (the parties must be married at the time the property became titled in their joint names), possession (joint ownership and control), interest (the interests must be identical), title (the interest must have originated in the same instrument), time (the interests must have commenced simultaneously) and right of survivorship are simultaneously present and the debtor does not expressly disclaim the account is held as tenancy by the entireties. FIn re Stephenson, 2012 WL 4896725, at *1 (Bankr. M.D. Fla. Oct. 4, 2012) (citing Beal Bank v. Almand & Associates, 780 So.2d 45, 52, 58–60 (Fla.2001)). From a practical standpoint, establishing the TBE unities in a bank account is relatively straightforward. When a bank account is opened as TBE, the married couple will physically go to the bank, sign the account paperwork at the same time, and even check a box on their signature card indicating their intent to hold the account as TBE. But what happens if instead of fiat currency, i.e., currency that is issued and backed by a government, the married couple wishes to own cryptocurrency as TBE? The answer is not so simple. In part, the ability to claim TBE on cryptocurrency depends on whether it is classified as currency or property. Although there is authority for the adoption of either definition, for the purposes of this article, let us assume that cryptocurrency is, indeed, currency as its name implies.

Unlike fiat currency, cryptocurrency is not maintained in a bank account; it is maintained in a cryptocurrency wallet that is digitally created through a smartphone application or on a computer. Additionally, unlike opening a bank account, acquiring and storing cryptocurrency in a cryptocurrency wallet does not require a person to execute the same kinds of documentation that a bank might require. And although some platforms allow for the creation of shared cryptocurrency wallets, it is unclear whether simply sharing a cryptocurrency wallet is enough to establish the TBE unities. In short, because the formalities required to open a cryptocurrency wallet differ from those of a bank account, it appears difficult—at least from a logistical perspective—for a married couple to establish the unities necessary to create a TBE interest in cryptocurrency.

Fortunately, these logistical obstacles may have been inadvertently resolved by the creation of multi-signature cryptocurrency wallets. Multi-signature cryptocurrency wallets—or multisigs—require multiple “private keys” (which are akin to banking passwords) to process cryptocurrency transactions. Using a multisig platform, cryptocurrency cannot be transferred by one person without the consent of another person who holds an additional private key. In other words, a single party cannot alienate the cryptocurrency in a multi-signature wallet without the consent of another. And in the context of TBE, the inability of one spouse to alienate property without the consent of the other is of paramount importance. See Beal Bank, 780 So. 2d at 56 (stating that “one legally distinguishable consequence of ownership as a tenancy by the entireties is the inability of one spouse to alienate a portion of the estate without the consent of the other”). Thus, if a married couple were to: open a shared, multi-signature, cryptocurrency wallet: after the date of their marriage; with each spouse's private key required to conduct all cryptocurrency transactions; and with the intent of creating a TBE ownership interest in the cryptocurrency, a compelling argument could be made that the cryptocurrency qualifies as TBE property.

While the concept of claiming cryptocurrency as TBE does not appear to have been tested in a court of law, it may well be soon. Given the rise in cryptocurrency-related litigation—and as a result, cryptocurrency-based judgment enforcement—courts around the nation will likely be forced to determine whether a married couple can claim TBE on cryptocurrency. When that time comes, a married couple's ownership of a multi-signature cryptocurrency wallet, along with the existence of the other TBE unities, could potentially play a pivotal role in determining whether the cryptocurrency at issue qualifies as TBE.

Alan R. Rosenberg is a bankruptcy attorney with Markowitz, Ringel, Trusty + Hartog in Miami.