15.2.9 Entireties Property

154 See, e.g., In re Antonie, 447 B.R. 610 (D. Idaho 2011) (manufactured home owned in joint tenancy with non-debtor mother could be reached for daughter’s debts); In re Risler, 443 B.R. 508 (Bankr. W.D. Wis. 2010) (refusing to receive extrinsic evidence that father was on deed only to assist ill son in managing the property when deed stated that property was owned in joint tenancy by father and non-debtor son; father’s bankruptcy trustee could sell property).

155 See, e.g., Cmty. Nat’l Bank v. Persky (In re Persky), 893 F.2d 15 (2d Cir. 1989) (N.Y. law) (debtor’s interest in home owned by the entireties is not protected from execution by New York law even when debt is owed by only one of the spouses, but bankruptcy law requires court to consider detriment to non-debtor spouse before allowing sale of the entire property); Kaplan v. First Options of Chicago, 189 B.R. 882, 891 (E.D. Pa. 1995) (New Jersey law does not protect entireties real estate from claim by creditor of one spouse against that spouse’s interest in the property); In re Watford, 427 B.R. 552 (Bankr. S.D. Fla. 2010) (Georgia does not recognize tenancy by entireties; property owned by spouses is tenancy in common, which is severable); In re Garrett, 435 B.R. 434 (Bankr. S.D. Tex. 2010) (Texas does not recognize tenancy by entireties; even when bankruptcy law required application of North Carolina law to Texas debtors, entireties claim was governed by law of state where property was located); In re Nelms, 2005 WL 318802 (Bankr. E.D. Mich. Feb. 4, 2005) (Michigan debtors cannot claim tenancy-by-entireties exemption for property located in Louisiana, which does not recognize tenancy by entireties); Republic Credit Corp. I v. Upshaw, 10 So. 3d 1103 (Fla. Dist. Ct. App. 2009) (proceeds of California homestead, used to purchase home in Florida, could not be owned by entireties because California does not recognize that form of ownership); Lurie v. Sheriff of Gallatin Cty., 999 P.2d 342 (Mont. 2000) (tenancy by entireties not recognized in Montana for personal or real property).

156 ALASKA: Smith v. Kofstad, 206 P.3d 441 (Alaska 2009) (judgment creditor of deceased husband could not execute on home that was owned by entireties before husband’s death).

ARKANSAS: In re White, 460 B.R. 744 (B.A.P. 8th Cir. 2011), aff’d, 470 Fed. Appx. 538 (8th Cir. 2012).

DELAWARE: In re Kelly, 316 B.R. 629 (D. Del. 2004) (permitting debtor to exempt property held as tenants by the entirety with non-debtor spouse); In re Mintz, 2005 WL 758813 (Bankr. D. Del. Mar. 31, 2005) (allowing exemption of residence held as tenants by the entirety when trustee unable to show debtors had any joint debts).

FLORIDA: In re Sinnreich, 391 F.3d 1295 (11th Cir. 2004) (Fla. law) (real and personal property held in tenancy by entireties with non-debtor spouse is exempt); United States v. Lee, 232 F.3d 556 (7th Cir. 2000) (Fla. law) (when property was neither used in the commission of a crime nor purchased with proceeds thereof, tenancy by entireties protects innocent spouse against forfeiture of even guilty spouse’s interest); In re Holland, 2009 WL 2971087 (Bankr. N.D. Ill. Sept. 8, 2009) (Florida entireties law applies to Florida land owned by Illinois debtors; land deeded to married couple presumed to be owned by entireties); In re Mitchell, 344 B.R. 171 (Bankr. M.D. Fla. 2006) (if property deeded to married couple, tenancy by entireties is presumed; when property was deeded to couple and son, one joint tenant was the entireties and the other was the son); In re Willoughby, 212 B.R. 1011 (Bankr. M.D. Fla. 1997) (tenancy by entireties protects homestead from individual debts of husband, even debt for child support from prior marriage). But cf. In re Ramsurat, 361 B.R. 246 (Bankr. M.D. Fla. 2006) (to create Florida tenancy by entireties, couple must be married at time property conveyed; no tenancy by entireties when sale closed before marriage); Republic Credit Corp. I v. Upshaw, 10 So. 3d 1103 (Fla. Dist. Ct. App. 2009) (proceeds of California homestead, used to purchase home in Florida, could not be owned by entireties, because California does not recognize that form of ownership).

ILLINOIS: 735 Ill. Comp. Stat. § 5/12-112. See Maher v. Harris Tr. & Sav. Bank, 506 F.3d 560 (7th Cir. 2007) (by statute, Illinois allows tenancy by entirety in property maintained or intended as homestead by both husband and wife; rejecting creditor’s argument that shares in cooperative where couple resided were personal property that could not be owned in tenancy by entireties); In re Berg, 387 B.R. 524 (Bankr. N.D. Ill. 2008) (only homestead property may be owned in tenancy by entireties; if property ceases to be, or never was, homestead, ownership becomes tenancy in common); In re Eichorn, 338 B.R. 793 (Bankr. S.D. Ill. 2006) (filing of joint bankruptcy neither severs tenancy by entireties, nor “merges” bankruptcy estates; tenancy by entireties property remains exempt as to debt of individual spouse); In re Moreno, 352 B.R. 455 (Bankr. N.D. Ill. Sept. 20, 2006) (home held in tenancy by entireties cannot be reached for debt of one spouse); In re Tolson, 338 B.R. 359 (Bankr. C.D. Ill. 2005) (property could not be reached for individual debts under Illinois statute that applies when property is transferred into tenancy by entireties with sole intent to avoid payment of existing debts when financially troubled couple engaged in estate planning and lawyer drafted husband’s will at same time as deed). But cf. In re Meredith, 2012 WL 1835516 (Bankr. C.D. Ill. May 18, 2012) (Illinois tenancy-by-the-entireties exemption has fraud exception; transfer that occurred on same day large judgment was entered against husband was fraudulent).

INDIANA: Whitlock v. Pub. Serv. Co., 159 N.E.2d 280 (Ind. 1959) (only real estate and certain crops can be owned in tenancy by the entireties); Rhodes v. Indiana Nat’l Bank, 544 N.E.2d 179 (Ind. Ct. App. 1989) (Indiana protects real property, but not personal property, that is held in tenancy by entireties, from debts of one spouse; rents received from real property are personal property).

IOWA: In re Powers, 286 B.R. 726 (Bankr. N.D. Iowa 2002) (homestead right of husband and wife cannot be split, so cannot be executed upon for non-joint debt).

KENTUCKY: In re Brinley, 403 F.3d 415 (6th Cir. 2005) (Ky. law) (explaining how to apply Bankruptcy Code lien avoidance provisions to property owned in tenancy by entireties with non-debtor spouse).

MARYLAND: Schlossberg v. Barney, 380 F.3d 174 (4th Cir. 2004) (Md. law) (spouse who files individual bankruptcy can exempt property held in tenancy by entireties with non-debtor spouse); In re Greathouse, 295 B.R. 562 (Bankr. D. Md. 2003) (if no joint debts and no tax debts, property owned in tenancy by entireties completely exempt).

MASSACHUSETTS: In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law) (husband has 100% interest in home owned as tenancy by entireties), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001); Bakwin v. Mardirosian, 6 N.E.3d 1078, 1086 (Mass. 2014). But cf. In re Hidler, 192 B.R. 790 (Bankr. D. Me. 1996) (when Massachusetts tenancy by entireties was created before passage of tenancy by entireties statute, common law applied and property could be sold for individual debt of husband).

MICHIGAN: In re Raynard, 354 B.R. 834 (B.A.P. 6th Cir. 2006) (Mich. law) (in or out of chapter 13, tenancy by entireties property exempt from creditors of individual spouse); In re Spears, 313 B.R. 212 (W.D. Mich. 2004) (filing of bankruptcy by one spouse does not sever tenancy by entireties; entireties property may be reached only for joint debts); In re Hamacher, 535 B.R. 180 (Bankr. E.D. Mich. 2015) (allowing exemption of property that was owned by entireties on petition date; husband’s postpetition death did not cause property to be acquired by “inheritance, devise or descent”). Cf. United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) (describing Michigan’s recognition of tenancy by entireties; property tax lien can nonetheless attach to debtor husband’s interest).

MISSOURI: Brown v. Eads (In re Eads), 271 B.R. 371 (Bankr. W.D. Mo. 2002); In re Brown, 234 B.R. 907 (Bankr. W.D. Mo. 1999) (real and personal property of married couple is presumed to be owned in tenancy by entireties and thus exempt from claims of individual creditors).

NORTH CAROLINA: N.C. Gen. Stat. § 39-13.6. See In re Payne, 2004 WL 2757907 (Bankr. M.D.N.C. Nov. 15, 2004) (property owned in tenancy by entireties fully exempt if no joint creditors; because couple did not claim homestead exemption, each debtor entitled to “in lieu of homestead” wildcard).

OHIO: First Fed. Sav. & Loan Ass’n v. Dus, 2003 WL 21545126 (Ohio Ct. App. July 10, 2003) (lien could not attach to real property owned in tenancy by entireties for husband’s individual debt; divorce changed tenancy by entireties into joint tenancy, but lien still did not attach because it came into existence while parties were married).

PENNSYLVANIA: In re Olexa, 476 F.3d 177 (3d Cir. 2007) (entireties property cannot be reached even though debts were for necessaries, as necessaries statute refers only to spouse’s separate property); Sterrett v. Sterrett, 166 A.2d 1 (Pa. 1960).

RHODE ISLAND: In re Pearlman, 2005 WL 1331256 (Bankr. D.R.I. Apr. 18, 2005) (commercial property exempt and bankruptcy estate’s interest limited to value of contingent expectancy interest when property held as tenants by the entirety); In re Strandberg, 253 B.R. 584 (Bankr. D.R.I. 2000) (when property owned in tenancy by entireties, debtor-husband may claim entire homestead exemption; Rhode Island law allows only one owner to claim exemption, which cannot be divided).

TENNESSEE: In re Estate of Fletcher, 538 S.W.3d 444, 448 (Tenn. 2017); Bryant v. Bryant, 522 S.W.3d 392 (Tenn. 2017).

VERMONT: Evans v. Wolinsky, 347 B.R. 9 (D. Vt. 2006) (entireties property cannot be reached by creditors, so transfer to wife individually, at time when no joint debts, not fraudulent); In re Hutchins, 306 B.R. 82 (Bankr. D. Vt. 2004) (Vermont recognizes entireties doctrine, but lien for federal criminal fine can attach to husband’s interest); RBS Citizens v. Ouhrabka, 30 A.3d 1266 (Vt. 2011) (Rights of Married Women Act did not eliminate the basis for tenancy by entireties).

VIRGINIA: In re Thomas, 312 F.3d 145 (4th Cir. 2002) (Va. law) (even in joint bankruptcy, entireties property may be reached only by joint creditors); In re Sampath, 314 B.R. 73 (Bankr. E.D. Va. 2004) (deed to married couple grants tenancy by entireties, even if deed silent as to marital status; adding daughter to deed did not sever tenancy by entireties; couple’s share could not be reached for individual debt of husband); In re Zella, 196 B.R. 752 (Bankr. E.D. Va. 1996) (proceeds of sale of entireties real estate are, like the real estate, exempt from the claims of one spouse’s creditors), aff’d, 202 B.R. 712 (E.D. Va. 1996); In re Scialdone, 197 B.R. 225 (Bankr. E.D. Va. 1995) (real property held in tenancy by entirety was exempt from attachment by creditor of only one spouse; tenancy by entirety can be created only by explicit language in the deed); Rogers v. Rogers, 512 S.E.2d 821 (Va. 1999) (when creditors had federal court judgment against husband and state judgment against wife, both apparently resulting from the same transactions, entireties property could not be attached; only a joint judgment against husband and wife could be satisfied from entireties property).

VIRGIN ISLANDS: In re Prosser, 2013 WL 594312 (Bankr. D. V.I. Feb. 14, 2013) (Virgin Islands law recognizes tenancy by the entireties, but property owned in joint tenancy before marriage does not automatically become tenancy by the entireties upon marriage; conveyance must be shown).

WYOMING: Baker v. Speaks, 334 P.3d 1215 (Wyo. 2014).

157 Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) (finding bank accounts to be owned by entireties). See also In re Somerset Regional Water Res., L.L.C., 949 F.3d 837 (3d Cir. 2020) (Pa. law) (“marriage, plus ‘four unities’ of time, title, possession and interest . . . spouses must (1) have their interests ‘vest at the same time,’ (2) ‘obtain[ ] their title by the same instrument,’ (3) have ‘an undivided interest in the whole,’ and (4) own interests ‘of the same type, duration and amount’ ”); Baker v. Speaks, 295 P.3d 847 (Wyo. 2013) (“(1) unity of interest, (2) unity of title, (3) unity of time, and (4) unity of possession . . . unity of person which exists only in the case of a husband and wife”; fact issues here as to whether the couple were married at the time they took title to the real estate).

158 In re Thomas, 312 F.3d 145 (4th Cir. 2002); In re Raynard, 354 B.R. 834 (B.A.P. 6th Cir. 2006) (Mich. law); In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001).

159 In re Thomas, 312 F.3d 145 (4th Cir. 2002); In re Raynard, 354 B.R. 834 (B.A.P. 6th Cir. 2006) (Mich. law); In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001); In re Spears, 313 B.R. 212 (W.D. Mich. 2004) (filing of bankruptcy by one spouse does not sever tenancy by entireties); In re Eichorn, 338 B.R. 793 (Bankr. S.D. Ill. 2006) (filing of joint bankruptcy neither severs tenancy by entireties, nor “merges” bankruptcy estates; tenancy by entireties property remains exempt as to debt of individual spouse). See also § 15.2.6, supra (state requirements that both spouses sign mortgage).

160 See United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) (describing theory and history of tenancy by entireties); In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001); United States v. Fed. Res. Corp., 2015 WL 13732329 (D. Idaho Sept. 4, 2015) (Fla. law) (separation alone does not sever entireties estate), report and recommendation adopted by 137 F. Supp. 3d 1267 (D. Idaho 2015); In re Ryan, 282 B.R. 742 (D.R.I. 2002); In re LaBorde, 231 B.R. 162 (Bankr. W.D.N.Y. 1999) (divorce severs tenancy by entireties; when husband, after divorce, deeded his half-interest in home to former wife, she took subject to judgment liens against him); In re Shannis, 229 B.R. 234 (Bankr. M.D. Fla. 1999) (under Florida law, tenancy by entireties is severed by divorce; property is then owned in tenancy in common and can be reached by creditors of individual spouse). But cf. First Fed. Sav. & Loan Ass’n v. Dus, 2003 WL 21545126 (Ohio Ct. App. July 10, 2003) (divorce turned tenancy by entireties into joint tenancy, but lien for husband’s individual debt still would not attach, because debt incurred during marriage); In re Ballato, 318 B.R. 205 (Bankr. M.D. Fla. 2004) (divorce turned tenancy by entireties into tenancy in common but did not destroy homestead exemption, which protects any interest in land).

161 See In re Daniels, 2018 WL 4836770 (Bankr. E.D. Va. Oct. 1, 2018) (proceeds of sale of tenants by entireties property remain exempt); In re Stanke, 234 B.R. 439 (Bankr. W.D. Mo. 1999) (tenancy by entireties severed, and protection lost, when couple transferred property to tax planning trust, with provisions inconsistent with tenancy by entireties). But see In re Bellingroehr, 403 B.R. 818 (Bankr. W.D. Mo. 2009) (entireties status not lost by transfer to estate planning trust, which imposed same restrictions on alienation by one spouse as are imposed by tenancy by entireties).

162 In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001); In re Hutchins, 306 B.R. 82 (Bankr. D. Vt. 2004); In re Shannis, 229 B.R. 234 (Bankr. M.D. Fla. 1999).

163 In re Thomas, 312 F.3d 145 (4th Cir. 2002); In re Snyder, 249 B.R. 40 (B.A.P. 1st Cir. 2000) (Mass. law), aff’d, 2 Fed. Appx. 46 (1st Cir. 2001); Smith v. Kofstad, 206 P.3d 441 (Alaska 2009) (judgment creditor of deceased husband cannot execute on home that was owned by entireties before husband’s death, as husband’s share was extinguished upon his death, and wife acquired full ownership).

164 In re Moore-Brown, 2009 WL 2868233 (Bankr. E.D.N.C. Sept. 1, 2009).

165 United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002); United States v. Barczyk, 434 Fed. Appx. 488 (6th Cir. 2011) (entireties property may be sold for tax debt of one spouse; non-debtor spouse is entitled to one-half of sales proceeds), aff’g, 697 F. Supp. 2d 789 (E.D. Mich. 2010). See also United States v. Cardaci, 2013 WL 5816823 (D.N.J. Oct. 29, 2013) (trial court has discretion to decline to order sale of entireties property for debt of one spouse when it would displace innocent family members); S.E.C. v. Solow, 682 F. Supp. 2d 1312 (S.D. Fla. 2010) (property may be reached to pay disgorgement order in SEC securities fraud enforcement action, notwithstanding state homestead and tenancy-by-entireties exemptions), aff’d, 396 Fed. Appx. 635 (11th Cir. 2010).

166 In re Kartman, 354 B.R. 70 (Bankr. W.D. Pa. 2006) (if creditor has claim for joint debt, tenancy by entireties property not exempt in individual spouse’s bankruptcy); In re Guzior, 347 B.R. 237 (Bankr. E.D. Mich. 2006) (in bankruptcy, tenancy by entireties property is non-exempt to the amount of joint debt minus the homestead exemption). But cf. In re Holler, 463 B.R. 733 (Bankr. E.D. Pa. 2011) (spouses who owned home by entireties signed separate guarantees for loan to their jointly-owned company; guarantees could not be enforced against entireties property; joint debt means something more than liability for the same debt), aff’d, 2012 WL 3526466 (E.D. Pa. Aug. 14, 2012); In re Davis, 403 B.R. 914 (Bankr. M.D. Fla. 2009) (creditor who had judgment against the husband for a debt, and against the wife as recipient of fraudulent transfer, was not joint creditor; two debts, even to same creditor, not a joint debt); In re Olexa, 317 B.R. 290 (Bankr. W.D. Pa. 2004) (entireties property is protected where judgment is against wife only, even if the underlying debt is for necessaries, as statute making spouse liable for necessaries allows collection only from spouse’s separate property), aff’d, 476 F.3d 177 (3d Cir. 2007); Rogers v. Rogers, 512 S.E.2d 821 (Va. 1999) (when creditors had federal court judgment against husband and state judgment against wife, both apparently resulting from the same transactions, entireties property could not be attached; only a joint judgment against husband and wife can be satisfied from entireties property).

167 In re Yotis, 518 B.R. 481 (Bankr. N.D. Ill. 2014) (lien may attach to future interests of debtor who owns property by the entireties).

168 In re Ryan, 282 B.R. 742 (D.R.I. 2002) (bankruptcy trustee may sell debtor’s contingent future expectancy interest in entireties property); In re Arwood, 289 B.R. 889 (Bankr. E.D. Tenn. 2003) (trustee can sell debtor-spouse’s survivorship interest in property owned in tenancy by entireties with non-debtor spouse); Kipp v. Sweno, 683 N.W.2d 259 (Minn. 2004) (husband’s survivorship interest can be sold, but he can claim entire $200,000 homestead exemption). See also In re Weza, 248 B.R. 470 (Bankr. D.N.H. 2000) (debtor-husband’s interest in Massachusetts property held by common law tenancy by entireties could be sold by husband’s creditor, and both husband and wife dispossessed, subject to survivorship rights of wife).

169 See § 15.2.5.1, supra.