Those states reinterpreting tenancy by the entirety to accommodate the Married Women’s Property Acts follow one of two basic patterns: (1) re-establishing the “oneness” of the tenancy so that neither spouse can act unilaterally; or (2) giving parity to the wife so that she also can alienate part of the tenancy during her lifetime. The survivorship element is generally maintained, even in the latter model. From an asset protection viewpoint, these states may be characterized as either “full bar” jurisdictions or “modified bar” jurisdictions. In full bar jurisdictions, a creditor of one spouse does not acquire an attachable interest in the entireties property. Conversely, in a modified bar jurisdiction, a creditor of one spouse enjoys some rights in the entireties property, but those rights must accommodate the non-debtor spouse’s interest.
Most states retaining the tenancy are full bar jurisdictions, holding that both spouses must act together to alienate the property.[2] Hawaii was the last jurisdiction to examine the nature of the tenancy after the Married Women’s Property Act, and it adopted a full bar approach in Sawada v. Endo:
The effect of the Married Women’s Property Acts was to abrogate the husband’s common law dominance over the marital estate and to place the wife on a level of equality with him as regards the exercise of ownership over the whole estate. The tenancy was and still is predicated upon the legal unity of husband and wife, but the Acts converted it into a unity of equals and not of unequals as at common law. No longer could the husband convey, lease, mortgage or otherwise encumber the property without her consent. The Acts confirmed her right to the use and enjoyment of the whole estate, and all the privileges that ownership of property confers, including the right to convey the property in its entirety, jointly with her husband, during the marriage relation. They also had the effect of insulating the wife’s interest in the estate from the separate debts of her husband…. Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution.[3]
The Sawada court held that the husband and wife could convey their residence to their child free from the husband’s judgment creditor. After enactment of the Hawaii Married Women’s Property Act of 1888, therefore, the husband no longer had separate rights that could be subject to his sole debts.
Modified bar jurisdictions, on the other hand, permit a degree of creditor attachment of a debtor spouse’s interest. In Oregon, for example, the tenancy is viewed as a tenancy in common with an indestructible right of survivorship. Thus, a creditor will have an interest in the rents and profits attributable to the debtor spouse but no right of partition. If the non-debtor spouse is the survivor, the lien is extinguished. If the debtor spouse is the survivor, the property can be sold to satisfy the lien.[4]
In addition to the full bar/modified bar distinction, those jurisdictions recognizing tenancy by the entirety differ as to whether the tenancy may be established for holding personal property. Most jurisdictions permit personal property to be held tenants by the entirety:
There has always been a controversy as to whether entireties doctrines had any proper application to mere personally property, which always could be disposed of absolutely by the husband [under common law]; but there can be no doubt that in a majority of the United States [entireties doctrines] were early and consistently applied in appropriate cases to marital co-ownership of any types of assets.[5]
Interestingly, even in full bar jurisdictions where the entireties doctrine applies to personal property, the entireties nature of a joint account is not necessarily destroyed if one spouse may draw unilaterally from that account.[6]
Although the various entireties jurisdictions follow two clear patterns, the variations jurisdiction by jurisdiction are pronounced enough to require that estate and/or asset protection planning involving entireties property be rooted in the law of the appropriate jurisdiction.[7] Given that many clients may own properties in multiple jurisdictions, the practitioner’s task can be complicated. In sum, estate and asset protection planning involving entireties property must be jurisdiction specific.
[1] This article’s Appendix includes a comparative chart of those states that recognize tenancy by the entirety.[2] See Appendix. [3] Sawada v. Endo, 561 P.2d 1291, 1295 (Haw. 1977) (citations omitted). [4] Brownley v. Lincoln County, 343 P.2d 529, 531 (Or. 1959); see also Hoyt v. American Traders, Inc., 725 P.2d 336, 337 n. 1 (Or. 1986). [5] Phipps, supra note 4, at 25; see also Appendix. [6] See, e.g., Beal Bank, SSB v. Almond & Associates, 780 So.2d 45, 62 (Fla. 2001) (“[T]he ability of one spouse to make an individual withdrawal from the account does not defeat the unity of possession so long as the account agreement contains a statement giving each spouse permission to act for the other.”). [7] Some even argue that the dissimilarities between those states that continue to recognize entireties are so pronounced that generalization is impossible. See Powell, supra note 8, at 52-54.
– See more at: /asset-protection/asset-protection-and-tenancy-by-the-entirety/2-state-variations/#sthash.gqye3pKk.dpuf
