A core element of Maryland asset protection planning for married couples is holding the property as tenants by the entirety. A judgment against either the husband or the wife does not attach to the judgment debtor’s interest in entirety property. Hertz v. Mills, 166 Md. 492 (1934). A principal aspect of tenants by the entirety property is that both spouses hold the entirety and therefore neither the husband nor the wife can dispose of any part of the property without the assent of the other. Watterson v. Edgerly, 4 Md.App. 230 (1978) (The judgment debtor husband can transfer his interest in entirety property to his wife because the creditor has no attachable interest in the property).

Maryland permits tenants by the entirety for both real property holdings and for the holding of personal property such as LLC interests or brokerage accounts.

Although the Maryland cases speak of this protection aspect as an absolute characteristic of the tenancy, the U.S. Supreme Court recognized an exception. In U.S. v. Craft, 535 U.S. 274 (2002), Justice Sandra Day O’Connor held that a tax lien against one spouse would attach to that spouse’s interest in tenants by the entirety property. Although the Craft case establishes the right of foreclosure of the government’s tax liens in tenants by the entirety property when it obtains a judgment against one spouse, actual sales of tenants by the entirety residences in tax cases have been rare.

Unfortunately, the Sixth Circuit has authorized the forced sale of a couple’s primary residence to satisfy the unpaid tax liability of the husband. In U.S. v. Davis, 815 F.3d 253 (2016), the IRS sought and won the ability to sell the primary residence over the objections of the non-liable wife. The wife argued that a forced sale of the residence would leave her undercompensated because it would assume that she and her husband have equal interests in the property. She claimed that due to life expectancy tables and her husband’s actual ill health it would be inappropriate for that property to be sold to satisfy the tax lien when her interests were predominant. A District Court has limited discretion not to order a forced sale of property in certain circumstances. U.S. v. Rodgers, 461 U.S. 677 (1983). The Rodgers factors include whether there would be likely prejudice to the innocent third party both in personal dislocation costs and because of under compensation and when comparing to the relative character and value of the non-liable and liable interests held in the property. Nevertheless, Mrs. Davis lost her Rodgers-based objections. Under local law (Michigan) spouses are entitled to equal interest in entireties property in several situations including divorce or consensual sale. The life expectancy differences do no result in different survivorship interests under local law. Maryland law is, of course, similar.

It remains to be seen whether foreclosing on tenants by the entirety property to satisfy a tax lien of one spouse will continue to be an unusual remedy seldom used by the IRS or, instead, part of the standard toolbox of the tax collector.