1. The Historic Roots and Development of Tenancy by the Entirety
Editors’ Synopsis: This article first discusses the history and development of tenancy by the entirety, a form of concurrent ownership of property by spouses. The article then considers state variations of that form of ownership and treatment with respect to bankruptcy law and federal tax liens. The article concludes with recommendations for planning with tenancies by the entirety. The appendix to the article provides a useful state by state summary of asset protection aspects of the form of ownership.
And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife are considered one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout et non per my; the consequences of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.
Under Blackstone’s classic formulation, tenancy by the entirety ownership did not track other forms of concurrent ownership like joint tenancies or tenancies in common. Rather, entirety property was ownership without equal parts or shares (“moieties”). One might assume that the absence of divisible shares meant that neither husband nor wife had a separate, alienable share. One might also assume that if “the whole must remain to the survivor,” then the alienation of a separate interest would defeat the right of each spouse to the survivorship of the whole.
The classic formulation of the tenancy is rooted in the theory that husband and wife constitute an indivisible unit: “An estate by the entireties is an almost metaphysical concept which developed at the common law from the Biblical declaration that a man and his wife are one.” In practice, however, this metaphysical oneness collided with the restrictions placed on women, particularly married women, by the common law:
A species of common-law concurrent ownership, tenancy by the entireties developed as part of the English feudal system of land tenures. The exigencies of feudalism demanded that the functions of ownership be vested in males presumably capable of bearing arms in war. Women were lightly regarded legally, especially married women – whose very identifies, in most respects, were considered merged and lost in the personalities of their husbands. For purposes of property and contract, the married woman was under a complete legal blackout termed coverture. Man and wife were one and the one was male.
The husband’s dominance at common law was extensive. He, and he alone, had sweeping powers over the entireties property. He exclusively:
(1) had the privilege and power to occupy the principal and to consume the income of the entire asset; (2) had power to manage, control, and externally dispose of possession and of income during the marriage; (3) had the benefit alone of all the assets for the use as a basis of credit, his possessory and his contingent survivorship interests being subject to attachment for his debts while not for those of the wife; (4) was alone entitled to represent the asset or any part thereof in litigation.
The husband’s control over the property was a control over its economic value during his lifetime. This power did not extend, however, to alienating the survivorship interest. The tenancy by the entireties was inseparable from the married unit even though it was dominated by the husband during his lifetime. This situation generally continued until the middle of the nineteenth century when the women’s rights movement gained hold. As a consequence, Married Women’s Property Acts were enacted by the various States.
Married Women’s Property Acts abrogated the dominance of a husband over his wife’s property, thus reversing the common law and bringing parity of property rights to both spouses. These statutes forced entireties tenancy to be re-examined: “The question then necessarily arose whether the husband’s powers and the wife’s disabilities, now abrogated, had been incidents of the co-tenancy status or merely attributes of the marital status.”
If the dominance/disability matrix was an essential element of the tenancy, then the various Married Women’s Property Acts may be seen as being incompatible with, and therefore sweeping away, the tenancy itself. “This view of the effect of the Married Women’s Property Act – as abrogating entireties altogether – has been expressly followed in at least nine states: Alabama, Colorado, Illinois, Iowa, Maine, Minnesota, New Hampshire, South Carolina, and Wisconsin.”
Aside from the position that these acts effectively abolished tenancy by the entirety, two other general responses to the Married Women’s Property Acts arose: (1) to reinterpret the tenancy without the husband’s dominance and the wife’s disability; or (2) to deny that the new acts had any impact on the old form of the tenancy. Most states reinterpreted the tenancy by either prohibiting control or alienation of the property by one spouse through unilateral action or by giving each spouse separate rights to control or alienate specific attributes of the property. The few jurisdictions that initially took the position that the Married Women’s Property Acts did not impact the ancient attributes of tenancy by the entirety have now fallen into line with those states adopting the tenancy to reflect the equal rights of married women to exercise property rights.
It remains to be seen how entireties will develop in response to domestic partnership legislation and/or developing case law recognizing same-sex civil unions. Entireties requires, of course, marriage as the “fifth unity” of the tenancy:
[C]ommon law requires five ‘unities’ to be present: marriage – the joint owners must be married to each other; title – the owners must both have title to the property; time – they both must have received title from the same conveyance; interest – they must have an equal interest in the whole property; and control or possession – they both must have the right to use the entire property.
Under Vermont’s civil union statute, parties to a civil union are able “to hold real and personal property as tenants by the entirety (parties to a civil union meet the common law unity of person qualification for the purposes of a tenancy by the entirety).” The New Jersey Tax Court recently held, however, that a valid Vermont civil union did not qualify a New Jersey same-sex couple to hold New Jersey property by the entireties. How, or whether, the various states will accommodate entireties to the changing concepts of domestic relationships is uncertain. The early response appears to have similarities with the accommodation of the Married Woman’s Property Acts and entireties a century and one-half ago.
 William Blackstone, Commentaries on the Laws of England 182 (9th ed. 1783), quoted in Peter M. Carrozzo, Tenancies in Antiquity: A Transformation of Concurrent Ownership for Modern Relationships, 85 Marq. L. Rev. 423, 437 (Winter 2001). The 9th edition, published posthumously, contained the first discussion of a husband and wife owning an estate by its entirety by Blackstone. Its editor justified the addition: “The editor judges it indispensible to preserve the author’s text intire. The alterations which will be found therein, since the publication of the last edition, were made by the author himself, as may appear from a corrected copy in his own handwriting.” Id. at 437 n.154. In his article, Mr. Carrozzo traces the tenancy by the entirety to as early as the thirteenth century and characterizes Blackstone’s description of entities as “the first modern pronouncement.” Id. at 435-37. For another description of the evolution of the tenancy by the entirety, see also John V. Orth, Tenancy by the Entirety: The Strange Career of the Common-Law Marital Estate, 1997 B.Y.U. L. Rev. 35 (1997).
 United States v. Gurley, 415 F.2d 144, 149 (5th Cir. 1969) (interpreting Florida law).
 Oval A. Phipps, Tenancy by Entireties, 25 Temp. L. Q. 24, 24 (1951) (emphasis added).
 Id. at 25. Although this male control was sweeping, “English equity courts early developed an institution of separate property for married women, which somewhat alleviated in specific instances the harsh results of the common law dominance by the husband – ‘admitting the doctrine that a married woman is capable of taking real and personally estate to her own separate and exclusive use, and that she has also an incidental power to dispose of it.'” Id. at 26 quoting Joseph Story, Equity Jurisprudence § § 1378, 1402 (3d. ed. 1843).
 See Carrozzo, supra note 2, at 439-40. The Seneca Falls Declaration, for example, was published in 1848.
 Phipps, supra note 4, at 28.
 Id. at 29. Interestingly, England abolished tenancy by the entirety in 1925 by the Laws of Property Act in 1925. Richard R. Powell, Powell on Real Property, 52-54 (Michael A. Wolf, ed. 2008). A limited form of entireties tenancy was re-established for “homestead property” by statute in Illinois after the initial abolition. See Appendix.
 Massachusetts, for example, followed the rule that the “husband was the one” for lifetime control of the entireties property until reversed by statute in 1980. See D’Ercole v. D’Ercole, 407 F.Supp. 1377, 1382 (D.C. Mass. 1976). (“As was conceded [in an earlier case], the common law concept of tenancy by the entirety is male oriented. It is true that the only Massachusetts tenancy tailored exclusively for married persons appears to be balanced in favor of males.”). See also Janet D. Ritsko, Lien Times in Massachusetts: Tenancy by the Entirety after Coraccio v. Lowell Five Cents Savings Bank, 30 New Eng. L. Rev. 85 (1995) for a historical prospective on the late-developing acknowledgement of equal property rights for women in Massachusetts. Compare the Comment in the Appendix regarding a similar late statutory reversal of the male domination of entireties in Michigan.
 United States v. One Single Family Residence With Out Buildings Located at 15621 S.W. 209th Ave., Miami, Fla., 894 F.2d 1511, 1514 (11th Cir. 1990) (interpreting Florida law).
 15 Vt. Stat. Ann. § 1204(e)(1) (West 2008).
 Hennefeld v. Township of Montclair, 22 N.J. Tax 166, 188-90 (2005). This decision was based, in part, on the more restrictive New Jersey Domestic Partnership Act.
 For example, Carrozzo, supra note 2, sets out various possible responses (abolition of the tenancy, altering the fifth unity to encompass civil unions, modification of the tenancy) which bear a striking resemblance to the responses of the various states to the Married Woman’s Property Acts of the late 1800â€²s. Id. at 455-65.