Tenancy by the Entirety

Chapter 17 developed joint tenancy, the concurrent estate whose survivorship any cotenant may destroy at will. This chapter develops its marital analogue, the estate in which survivorship cannot be destroyed by either owner acting alone. Tenancy by the entirety rests upon a fiction the common law took seriously: that husband and wife are one person, so that a conveyance to them creates not two alienable half-shares but a single undivided ownership held by an indivisible unit. From that premise the whole modern law of the estate descends — the restraint on unilateral conveyance, the unavailability of partition during marriage, the immunity of the property from the separate creditors of one spouse in most entirety jurisdictions, and the automatic vesting of sole ownership in the survivor. The fiction that produced these consequences has been abolished; the consequences have not. Explaining how an estate can outlive its own rationale, and what its incidents are today, is the work of this chapter.

1. Tenancy by the entirety is a concurrent estate available only to spouses. Restatement (First) of Property §§ 189–193. It requires the four unities of joint tenancy and adds a fifth — the unity of marriage — which must exist at the moment the estate is created and must continue for the estate to continue.
2. The spouses hold per tout et non per my — by the whole and not by the half. Neither owns a fractional share. Each is seised of the entirety, which is why neither has a divisible interest to convey, to encumber, or to have taken in execution by a separate creditor.
3. Survivorship is indestructible by unilateral act. On the death of one spouse the survivor holds the whole in severalty. Unlike joint tenancy, the incident cannot be defeated by a deed, a declaration, a contract, or a lien granted by one spouse alone.
4. Partition is unavailable during the marriage. Because there are no fractional shares to divide, neither spouse may compel partition; the estate ends only by the joint act of both, by divorce, by death, or by a judicial sale in a proceeding to which both are subject.
5. The estate is not universal. Roughly half the states recognize tenancy by the entirety; the community-property states and a number of common-law states have abolished it. Recognition, the property to which it extends, and the degree of creditor protection all vary by jurisdiction, and no general rule may be asserted without checking the local statute.
6. The Married Women's Property Acts reformed but did not abolish the estate. By equalizing the wife's capacity, the Acts destroyed the husband's common-law right to possession and rents and thereby produced the modern rule of equal management, use, and enjoyment.
7. In most entirety jurisdictions the property is beyond the reach of a separate creditor of one spouse. The creditor of one spouse alone cannot levy on entireties property, and a lien is at most contingent upon that debtor spouse surviving. Joint creditors of both spouses may reach the property; a minority of states permit a separate creditor to reach the debtor's survivorship expectancy.
8. Federal tax liens are an exception created by federal law. United States v. Craft, 535 U.S. 274 (2002), holds that a delinquent spouse possesses “property” or “rights to property” in entireties land to which a federal tax lien under 26 U.S.C. § 6321 attaches, notwithstanding a contrary state characterization.
9. Bankruptcy law incorporates state entireties immunity through the exemption scheme. 11 U.S.C. § 522(b)(3)(B) permits a debtor to exempt entireties property to the extent it is exempt from process under applicable nonbankruptcy law; the interest itself enters the estate under § 541(a), and § 363(h) governs any sale.
10. Divorce terminates the unity of marriage and converts the estate. Absent a decree disposing of the property, most jurisdictions convert the entirety into a tenancy in common; a minority into a joint tenancy. Annulment and, in some states, a decree of separation may have the same effect.
11. The estate is a device of survivorship and protection, not a substitute for an estate plan. It avoids probate as to the first death only, does nothing at the second death, cannot be used for dispositive planning, may be defeated by a fraudulent-transfer or joint-obligation claim, and gives no protection against the federal government or against creditors of both spouses.

• Define tenancy by the entirety and state precisely how it differs from joint tenancy, tenancy in common, and community property.
• Explain the doctrine of marital unity, its function in the medieval and early modern land law, and the sense in which the modern estate survives the abolition of the fiction that produced it.
• State the five unities and identify the consequence of the absence or destruction of each, distinguishing failure at creation from termination after creation.
• Apply the rules of creation, including the presumption in favor of the estate in recognizing jurisdictions, direct conveyances between spouses, and the property eligible for entireties ownership.
• Analyze the effect of the Married Women's Property Acts upon possession, rents, management, and the reach of creditors.
• Explain why neither spouse may unilaterally convey, encumber, sever, or compel partition, and identify the acts that do terminate the estate.
• Compare the treatment of separate creditors, joint creditors, and execution purchasers across the recognized jurisdictional approaches.
• Apply United States v. Craft to a federal tax lien against one spouse and explain its relation to state-law characterization.
• Apply 11 U.S.C. §§ 522(b)(3)(B), 541(a), and 363(h) to entireties property in the bankruptcy of one spouse and of both spouses.
• Determine the effect of divorce, annulment, separation, simultaneous death, and the death of a spouse upon the estate and upon the record title.
• Evaluate entireties ownership as an instrument of estate planning and asset protection, and correct the misconceptions that most often attend its use.

• Restatement (First) of Property §§ 189–193 (1936) (tenancy by the entirety; incidents and termination).
• Restatement (First) of Property §§ 178–188 (1936) (concurrent interests generally; the unities).
• Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 6.1–6.2, 7.1 (2003) (nonprobate transfers; survivorship arrangements).
• Restatement (Fourth) of Property (Tentative Drafts) (division and transfer of concurrently owned interests), consulted where adopted.
• 26 U.S.C. §§ 6321, 6331, 6334 (federal tax lien; levy; property exempt from levy).
• 11 U.S.C. §§ 363(h), 522(b)(3)(B), 541(a) (bankruptcy treatment of co-owned and entireties interests).
• I.R.C. §§ 1014, 2040(b) (basis at death; qualified joint interests of spouses).
• Uniform Probate Code §§ 2-702, 2-803, 6-101 (survival requirement; slayer rule; nonprobate transfers on death).
• Uniform Simultaneous Death Act §§ 1–4 (Unif. Law Comm'n 1940, revised 1993).
• Uniform Voidable Transactions Act §§ 4–5 (Unif. Law Comm'n 2014) (transfers into entireties form as voidable transfers).
• Married Women's Property Acts (state enactments, 1839–1895) and successor marital-property statutes.
• State tenancy-by-the-entirety, homestead, recording, and dissolution statutes, including those extending the estate to personal property.

• 1 William Blackstone, Commentaries on the Laws of England *430–*433 (1765); 2 id. *182 (1766).
• Edward Coke, The First Part of the Institutes of the Laws of England §§ 291, 299, 351 (1628).
• 2 James Kent, Commentaries on American Law *129–*132 (1827); 4 id. *362–*364 (1830).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 399–436 (2d ed. 1898) (husband and wife).
• S. F. C. Milsom, Historical Foundations of the Common Law 168–177 (2d ed. 1981).
• A. W. B. Simpson, A History of the Land Law 55–80 (2d ed. 1986).
• John H. Baker, An Introduction to English Legal History 265–290, 519–536 (5th ed. 2019).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 5.5–5.6 (3d ed. 2000).
• 7 Richard R. Powell, Powell on Real Property §§ 52.01–52.05 (Michael Allan Wolf ed., 2023).
• 2 Herbert T. Tiffany, The Law of Real Property §§ 430–435 (3d ed. 1939 & Supp.).
• John V. Orth, Tenancy by the Entirety: The Strange Career of the Common-Law Marital Estate, 1997 BYU L. Rev. 35.
• Richard H. Chused, Married Women's Property Law: 1800–1850, 71 Geo. L.J. 1359 (1983).
• Steve R. Johnson, After Craft: Implementation Issues, 96 Tax Notes 1323 (2002).
• Lawrence Kalevitch, Some Thoughts on Entireties in Bankruptcy, 60 Am. Bankr. L.J. 141 (1986).

A tenancy by the entirety is a concurrent estate held by two persons who are married to each other, in which each is seised of the whole rather than of a fractional share, in which neither may convey, encumber, sever, or compel partition without the concurrence of the other, and in which the survivor takes the entire estate in severalty upon the death of the first to die. Restatement (First) of Property §§ 189–193 states the estate in substantially these terms. Every distinctive incident of the estate — the restraint on unilateral alienation, the unavailability of partition, the immunity from the separate creditors of one spouse, and the indestructibility of survivorship — proceeds from the single proposition that there is no divisible share upon which a unilateral act can operate.

The classical formula is per tout et non per my: by the whole and not by the half. It should be read against the joint tenancy formula given in Chapter 17, per my et per tout. Joint tenants hold by the half for purposes of alienation and by the whole for purposes of survivorship; that duality is what makes joint tenancy fragile, since the alienable half-share can be conveyed away and the survivorship destroyed. Tenants by the entirety hold by the whole for both purposes. The removal of the first term of the formula removes the mechanism of severance, and with it the exposure to creditors and to unilateral defeat that attends the joint tenancy.

Two cautions govern the entire chapter. The first is jurisdictional. Tenancy by the entirety is not a national institution: it exists in roughly half the states, and among those that recognize it the incidents differ materially, above all in the treatment of creditors and in whether the estate extends to personal property. No proposition in this chapter should be applied without verification against the statutes and decisions of the jurisdiction in question. The second is temporal. The estate's incidents were reformed by the Married Women's Property Acts in the nineteenth century, by constitutional decisions in the twentieth, by the federal tax and bankruptcy law of the last half-century, and by the recognition of same-sex marriage; the estate as it stands today is the residue of those reforms, not the estate Blackstone described.

The estate rests upon the doctrine of coverture: the proposition that upon marriage husband and wife became one person in law and that the legal personality of the wife was suspended, or, in Blackstone's formulation, incorporated into that of the husband. Applied to a conveyance, the doctrine yielded a conclusion of formal logic. Two grantees who are one person cannot take by moieties, because a single person cannot hold a half interest as against himself. The grantees therefore take the entirety, and each holds the whole. Because each holds the whole, nothing accrues to the survivor at the other's death; the survivor simply continues to hold what the marital unit always held, freed of the participation of the deceased spouse.

The fiction was never merely descriptive. It carried a distribution of powers that modern law finds intolerable. At common law the husband, as the person in whom the unity was embodied, held the jus mariti: the right of possession, use, and profits of the entireties land during the marriage, together with the power to lease it and to permit his creditors to reach his possessory rights. The wife's interest was reduced to a protected expectancy of survivorship. The estate thus combined a genuine protection — the wife's survivorship could not be defeated by the husband's conveyance — with a comprehensive subordination during the marriage.

Orth's study of the estate describes this decoupling as a strange career: an institution that ought to have fallen with coverture instead expanded, because legislatures in a number of states found in it a convenient shelter for the family residence against the commercial misfortunes of one spouse. The modern estate is therefore best understood as a statutory asset-protection device wearing the vocabulary of a medieval fiction — a characterization that explains both its persistence and the intensity of the creditor litigation examined in Part VI.

Tenancy by the entirety shares with joint tenancy the four unities and the right of survivorship, and shares with every concurrent estate the unity of possession described in Chapter 16. It differs from joint tenancy in the fifth unity, in the absence of a divisible share, in the unavailability of partition, and in the treatment of the separate creditors of one owner. It differs from tenancy in common in the presence of survivorship and in the absence of freely alienable fractional shares. It differs from community property, examined in Chapter 19, in origin and in structure: community property is a civil-law regime of classification that operates upon acquisitions during marriage by force of law, whereas the entirety is a common-law estate that arises only from the form of a particular conveyance.

The table states general positions and is a map, not an authority. Two entries deserve emphasis because they are the practical points of comparison most often mistaken. First, the entirety's creditor immunity is a matter of state law and admits of the federal exceptions examined in Part VI. Second, the double basis adjustment available to community property under I.R.C. § 1014(b)(6) has no analogue in entireties ownership: a couple who hold appreciated property by the entirety obtain an adjustment only as to the decedent's includible half. That difference, examined again in Chapter 19, is frequently decisive in choosing a form of ownership where a choice exists.

The estate appears in the medieval sources not as an invention but as an application. Bracton and the early year books treat a feoffment to a man and his wife as producing a holding distinct from the ordinary joint feoffment, and Coke's Institutes states the rule in the form later repeated by every American court: husband and wife are one person in law, they cannot take by moieties, and they are seised of the entirety. Pollock and Maitland place the doctrine within the wider medieval law of husband and wife, observing that the unity was less a philosophical proposition than a set of procedural consequences — the wife could not sue or be sued alone, could not convey without the fine and the private examination, and could not hold land free of her husband's control during the marriage.

Two features of the medieval estate should be noted because they explain its later trajectory. The first is protective. The requirement of a fine levied with the wife's separate examination before the estate could be conveyed was a genuine safeguard against a husband alienating the family land, and the entirety extended that safeguard to conveyances of land held by both. The second is feudal, and identical to the logic that produced joint tenancy: since no descent occurred on the death of the first spouse, no incidents of tenure fell due, and the lord's services continued undisturbed.

Milsom and Baker both stress that the estate was never conceptually independent of joint tenancy. It was joint tenancy inflected by coverture — the same four unities, the same survivorship, with the marital relation supplying a reason to deny the tenants the separate alienable share that joint tenants possessed. That derivation is the reason the modern law of the entirety must be studied after joint tenancy and in terms of the differences from it, and the reason that the destruction of the marital unity in a jurisdiction that has abolished the estate simply leaves the parties holding as joint tenants or tenants in common.

Between 1839 and the end of the nineteenth century every American state enacted legislation conferring upon married women the capacity to own, manage, and convey property in their own right. Chused's study of the early Acts shows that they were adopted for a mixture of protective and commercial motives — shielding family property from a husband's creditors as much as vindicating the wife's independence — and that they were drafted without much attention to their effect upon concurrent estates. Their effect was nonetheless decisive, because they abolished the premise on which the estate's internal allocation of powers rested.

The state courts divided into three well-known camps, and the division persists in vestigial form in the modern law. Some courts held that the Acts abolished the estate altogether, since an estate founded upon a unity of persons could not survive the recognition of separate legal personality. Others held that the Acts left the estate untouched, on the reasoning that the Acts addressed the wife's separate property rather than property held jointly with her husband. The majority took the intermediate course that now prevails: the estate survived, but the Acts destroyed the husband's exclusive right to possession and profits, so that the spouses hold with equal rights of management, use, and enjoyment, and neither may deal with the property alone.

Sawada v. Endo, 561 P.2d 1291 (Haw. 1977), remains the leading modern classification of the resulting positions, and its taxonomy of four groups is reproduced in Part VI. The essential insight of the case is that the treatment of creditors follows directly from the view a jurisdiction takes of the Married Women's Property Acts: where the Acts equalized the spouses by raising the wife to the husband's former position, the separate creditors of either may reach the possessory interest; where they equalized by reducing the husband to the wife's former position, the separate creditors of neither may reach anything during the marriage.

Twentieth-century constitutional law completed the reform. Any surviving rule that allocated management, rents, or liability by sex became untenable under the equal-protection jurisprudence of the 1970s, and the remaining gender-specific incidents were abandoned by statute or decision. Obergefell v. Hodges, 576 U.S. 644 (2015), extended the estate to same-sex spouses in every recognizing jurisdiction as a matter of course, since the unity of marriage is satisfied by a valid marriage without regard to the sexes of the parties.

The estate requires the four unities of joint tenancy — time, title, interest, and possession — and adds the unity of marriage. The additional requirement does two kinds of work. At creation it restricts the class of persons who may take the estate: grantees who are not married to each other at the moment of the conveyance cannot take by the entirety, however clearly the instrument purports to create it, and the grant takes effect as a joint tenancy or a tenancy in common according to its language and the local presumption. After creation it operates as a condition of continuance: the dissolution of the marriage terminates the estate as such, and the parties hold thereafter in the form supplied by statute or decree.

Two points of application recur. First, a purported entirety between persons who believe themselves married but are not — the putative or void marriage — generally fails for want of the fifth unity, though several jurisdictions save the survivorship by construing the instrument as creating a joint tenancy, and equitable doctrines may protect a party who relied in good faith. Second, the unity of marriage is judged by the validity of the marriage under the law of the place of celebration as recognized in the situs jurisdiction, which matters for common-law marriages and for marriages celebrated abroad.

Creation requires a conveyance to two persons who are married to each other, satisfying the four unities, in a jurisdiction that recognizes the estate, and in a form that the local statute treats as sufficient. Beyond that, practice varies along a spectrum. At one end are states in which a conveyance to persons described as husband and wife, or as spouses, presumptively creates a tenancy by the entirety without further words. At the other are states in which the estate must be expressly declared in the same manner as survivorship in a joint tenancy. Between them are states that presume the estate for real property but require express language for personal property or for particular classes of assets.

The general statutory presumption against survivorship examined in Chapter 17 is therefore reversed, in recognizing jurisdictions, for conveyances to spouses. The reversal is a rule of construction, and it may be rebutted: an instrument that conveys to spouses “as tenants in common,” or “in equal shares,” or “share and share alike,” will ordinarily be given effect according to its terms, since the entirety is a form of ownership the grantees may decline. The conventional drafting formula in recognizing states is to convey “to A and B, husband and wife [or: spouses], as tenants by the entirety,” and where the statute prescribes language, to use it verbatim.

The unities of time and title once required that spouses who wished to convert separately held land into an entirety do so through a straw. Nearly every recognizing jurisdiction has now abrogated the requirement by statute, permitting a direct conveyance from one spouse to both, or from both to themselves, to create the estate. Where a statute of this kind exists it should be cited in the deed. Where it does not, or where its scope is doubtful, the straw conveyance remains available and remains prudent.

Real property is universally eligible in recognizing jurisdictions, and includes freehold estates of inheritance, life estates, and in most states leaseholds of substantial duration. The harder questions concern personal property. At common law the estate was confined to land, because the unity of seisin on which it rested was a doctrine of the real property law. A substantial number of modern jurisdictions have extended it, by statute or decision, to intangible and tangible personalty: bank and brokerage accounts, certificates of deposit, corporate shares, partnership interests, motor vehicles, and the proceeds of entireties realty. Others confine it to land, so that a conveyance of personalty to spouses creates a joint tenancy at most.

Bank accounts generate the most litigation, because they combine an entireties claim with the ordinary law of multiple-party accounts. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), is the leading modern treatment: where spouses open an account without express designation and the unities are otherwise satisfied, a presumption of entireties ownership arises, and the creditor bears the burden of rebutting it by showing that the spouses intended a different form. Other jurisdictions place the burden on the spouses, and the practical lesson is the same in both: the signature card should state the form of ownership expressly.

Proceeds and substitutions raise a related problem. Where entireties land is sold, condemned, or insured against loss, the majority position preserves the entirety in identifiable proceeds, at least where the spouses have not manifested an intention to hold them otherwise; commingling with separate funds defeats the tracing and, with it, the protection. Practitioners advising clients who rely upon entireties immunity should therefore treat the segregation of proceeds as an essential step rather than a formality.

Approximately half the states recognize tenancy by the entirety in some form. The community-property states have no occasion for it, since the civil-law regime examined in Chapter 19 supplies its own treatment of marital acquisitions; a small number of them nonetheless permit spouses to hold particular assets in survivorship forms by election. Among the common-law states, several abolished the estate outright in the wake of the Married Women's Property Acts, reasoning that separate legal personality was inconsistent with a unity of persons; in those states a conveyance to spouses creates a joint tenancy if survivorship is expressed and a tenancy in common if it is not.

Among recognizing states the variables are four: whether the estate extends beyond real property; whether it is presumed or must be expressly created; whether a separate creditor of one spouse may reach the property, the survivorship expectancy, or nothing; and whether the estate is converted into a joint tenancy or a tenancy in common upon divorce. A responsible opinion on entireties property addresses each of the four expressly, because the combinations differ and no single generalization holds across the recognizing group.

Each spouse is entitled to possession and use of the whole, and neither may exclude the other. The common-law jus mariti having been abolished, management is equal: rents and profits belong to both, decisions concerning the property require the concurrence of both, and neither may commit waste or grant rights to third parties acting alone. The ordinary cotenancy doctrines of Chapter 16 apply with adjustments appropriate to a relation in which there are no shares. Ouster is available where one spouse excludes the other, though the remedy is ordinarily sought within a matrimonial proceeding; accounting for rents received from third parties is generally required; and contribution for taxes, insurance, mortgage payments, and necessary repairs is available, though during an intact marriage such claims are rarely litigated and are usually resolved as part of an equitable distribution on dissolution.

Equality of ownership is a structural feature and not merely a presumption. Because there are no shares, the spouses cannot hold the entirety in unequal proportions, and an instrument that purports to give one spouse a larger interest is inconsistent with the estate and will create a tenancy in common instead. Unequal contribution to the purchase price does not alter the ownership, and in the ordinary case is treated as a spousal transfer rather than as a resulting trust, though the contribution may be relevant to equitable distribution on divorce and to the tracing of separate property in jurisdictions that recognize it.

The defining restraint is that neither spouse acting alone may convey, mortgage, lease, or otherwise encumber entireties property, and that an attempted unilateral disposition is ineffective as against the other spouse. The rule is not a restraint on alienation of the ordinary kind, which the law disfavors and often invalidates; it is a consequence of the definition of the estate. A grantor can convey no more than he holds, and a tenant by the entirety holds no separate interest capable of passing by his sole deed.

Jurisdictions divide on what, if anything, the unilateral grantee or mortgagee receives. In the states that give the estate its fullest protective effect, the deed or mortgage of one spouse is a nullity: it conveys nothing, encumbers nothing, and is removable as a cloud on title. In others it operates as a conveyance of the grantor's contingent right of survivorship, so that the grantee takes the whole if the grantor survives and nothing if the grantor dies first. In a third group, chiefly those that read the Married Women's Property Acts as raising the wife to the husband's common-law position, the instrument transfers the grantor's right to possession and profits during the joint lives together with the survivorship expectancy. Sterling v. Wilson, 621 A.2d 767 (Vt. 1993), illustrates the first position; Sawada v. Endo classifies all three.

Two corollaries follow for practice. First, a mortgage of entireties property requires the execution of both spouses, and a lender that accepts the signature of one takes, at best, a contingent security interest that a title examiner will treat as unmarketable. Second, a contract to convey entireties property signed by one spouse alone is not specifically enforceable against the estate, and the non-signing spouse cannot be compelled to join; the disappointed purchaser's remedy, if any, lies in damages against the contracting spouse.

On the death of one spouse the survivor holds the entire estate in severalty. The mechanism is the same as in joint tenancy — extinction of the decedent's participation rather than transfer of an interest — and the same consequences follow: the property passes outside probate, the decedent's will cannot dispose of it, and the decedent's general creditors cannot reach it after death because there is no interest upon which their claims can operate. Restatement (First) of Property § 190 and the modern statutes state the rule in these terms.

The difference from joint tenancy lies in indestructibility. A joint tenant may defeat survivorship by a conveyance to himself or to a straw; a tenant by the entirety may not, because there is no share to convey. Survivorship in the entirety may be defeated only by an act to which both spouses are parties or by an event that dissolves the marriage. That is the precise sense in which the estate provides security to the surviving spouse, and it explains why the estate remains attractive notwithstanding the availability of transfer-on-death deeds and revocable trusts, which offer probate avoidance but no comparable protection against the unilateral act of the other owner.

Three qualifications must be noted. Simultaneous death is governed by the Uniform Simultaneous Death Act and by 120-hour survival statutes: where neither spouse is shown to have survived the other by the statutory period, the property is distributed as though each had survived as to one-half, converting the estate for distribution purposes into a tenancy in common. Slayer statutes, codified in Uniform Probate Code § 2-803, prevent a spouse who feloniously and intentionally kills the other from taking by survivorship, and typically transform the estate into a tenancy in common at the moment of the killing. And an elective share or homestead right may qualify the survivor's position in the estate administration, though it does not ordinarily disturb title taken by survivorship.

The creditor question is the practical heart of the modern estate. A creditor of one spouse alone seeks to reach property that its debtor owns entirely and yet owns no share of; the answer a jurisdiction gives depends on how it reconciled the Married Women's Property Acts with the medieval estate. Sawada v. Endo classified the results into four groups, and the classification remains standard.

Sawada itself adopted the third position, and its reasoning has been widely followed: the Married Women's Property Acts equalized the spouses by withdrawing the husband's separate control rather than by conferring separate control on the wife, and a rule that permitted the creditors of either to disrupt the family home would defeat the purpose the legislature pursued. The competing view, pressed in the dissent and reflected in the second and fourth groups, is that immunity of this breadth allows a debtor to shelter substantial wealth from legitimate claims, and it is that objection which the fraudulent-transfer and federal-law limits examined below address.

A creditor whose claim runs against both spouses may reach entireties property, and the point is often decisive in practice. Joint obligations arise more readily than clients assume: both spouses ordinarily sign the purchase-money mortgage, the home-equity line, the guaranty of a family business, and the joint income-tax return, and in some jurisdictions a judgment in tort against both, or a judgment for necessaries furnished to the family, will bind the entirety. Any creditor sophisticated enough to demand both signatures obtains an obligation that entireties ownership does not defeat.

A transfer into entireties form is itself vulnerable. Where a debtor conveys separately owned property to himself and his spouse as tenants by the entirety while insolvent or in anticipation of a claim, the conveyance may be avoided as a voidable transfer under Uniform Voidable Transactions Act §§ 4–5, with the badges of fraud supplying the evidence of intent. The immunity is prospective protection for property already held in the form; it is not a device for defeating an existing creditor, and courts scrutinize eve-of-judgment transfers accordingly.

Two further limits deserve mention. Entireties immunity does not survive the estate: on divorce the property becomes a tenancy in common or a joint tenancy, and the separate creditors of each former spouse may thereafter reach the interest allotted. And the immunity does not bind the federal government, either in the enforcement of tax liens under 26 U.S.C. § 6321 or in criminal forfeiture, where the innocent-spouse provisions rather than the state-law estate determine the outcome.

Section 6321 of the Internal Revenue Code imposes a lien in favor of the United States upon “all property and rights to property” belonging to a delinquent taxpayer. Whether a taxpayer has such property is determined in the first instance by state law; whether what state law gives him counts as property for purposes of the federal statute is a question of federal law. United States v. Craft, 535 U.S. 274 (2002), applied that two-step method to entireties land and held that a spouse's rights in the property — the right to use it, to receive income from it, to exclude others, to alienate it with the other spouse's consent, and to take the whole by survivorship — constitute a sufficient bundle of rights to be “property” within § 6321, notwithstanding Michigan's characterization of the estate as owned by an indivisible unit.

The decision is important less for its result than for its method. Craft treats state law as supplying the sticks in the bundle and federal law as determining whether the bundle is enough, and it declines to allow a state-law label — “the entirety owns the property, not the spouses” — to control the federal question. On that reasoning entireties immunity, however complete against private creditors, is unavailable against the United States as to the delinquent spouse's rights.

Craft left the mechanics of enforcement to be worked out, and they remain contested. The Service may file and enforce its lien, but a forced sale of the whole property implicates the non-liable spouse, whose interest is protected by the discretionary framework of United States v. Rodgers, 461 U.S. 677 (1983): a court entertaining an action under 26 U.S.C. § 7403 may order a sale of the entire property and compensate the non-liable spouse out of the proceeds, weighing the prejudice to that spouse against the government's interest in collection. Valuing the delinquent spouse's share for that purpose — whether by a simple half, by actuarial computation of the survivorship expectancy, or otherwise — has produced conflicting approaches in the lower courts, and remains the principal unsettled question in the area.

When one spouse files, the debtor's interest in entireties property becomes property of the estate under 11 U.S.C. § 541(a), which sweeps in all legal or equitable interests without regard to restrictions on transfer. The immunity is then restored, if at all, through the exemption scheme: § 522(b)(3)(B) permits a debtor who elects state exemptions to exempt an interest in property held as a tenant by the entirety to the extent that the interest is exempt from process under applicable nonbankruptcy law. In a Sawada group-III jurisdiction the exemption is therefore extensive, and the trustee takes nothing for the benefit of the separate creditors of the filing spouse.

The qualification is decisive: the exemption is only as broad as the state-law immunity, and the immunity does not run against joint creditors. Where joint claims exist, courts following Napotnik v. Equibank, 679 F.2d 316 (3d Cir. 1982), and In re Hunter, 970 F.2d 299 (7th Cir. 1992), permit the trustee to administer the entireties property for the benefit of the joint creditors, distributing any surplus to the debtor. Where both spouses file, whether jointly or in related cases, the immunity is unavailable altogether, since every creditor of the consolidated estates stands in the position of a creditor of both.

Section 363(h) supplies the machinery for sale. A trustee may sell both the estate's interest and the interest of a co-owner, including a non-filing spouse, where partition in kind is impracticable, the benefit to the estate outweighs the detriment to the co-owner, and the property is not used in the production or distribution of energy; the co-owner receives the proceeds attributable to her interest and holds a right of first refusal under § 363(i). Because entireties property cannot be partitioned in kind during the marriage, the first condition is ordinarily satisfied, and the litigation turns on the balance of benefit and detriment. Federal tax claims, following Craft, are not defeated by the exemption, and a filing that is preceded by a transfer into entireties form invites scrutiny under § 548 as well as under state voidable-transaction law.

The estate terminates in five ways, and in no others: by the death of a spouse, which leaves the survivor holding in severalty; by the joint conveyance of both spouses to a third person, which passes the whole; by a conveyance from both spouses to one of them, or by an agreement between them effective under the local statute, which converts the estate into sole ownership or into another concurrent form; by divorce or annulment, which destroys the unity of marriage; and by a judicial sale in a proceeding binding upon both spouses, such as an execution upon a joint judgment, a foreclosure of a mortgage executed by both, or a sale under 11 U.S.C. § 363(h) or 26 U.S.C. § 7403.

Severance in the joint-tenancy sense — the unilateral destruction of survivorship by the act of one owner — is unavailable. This is the single most important structural difference between the two estates and should be stated to clients in those terms. Neither the deed of one spouse, nor a declaration of severance, nor a contract to convey, nor a lease, nor a mortgage granted by one spouse alone will convert the estate into a tenancy in common. Nor may one spouse compel partition; the partition statutes examined in Chapter 20 do not reach an estate in which there are no shares to divide, and a partition action brought during the marriage will be dismissed.

Agreements between spouses occupy a middle ground. A prenuptial, postnuptial, or separation agreement may provide for the disposition of entireties property, and in most jurisdictions a written agreement executed by both spouses, in recordable form, will convert the estate or bind the parties to convey. Whether the agreement alone effects the conversion or merely creates an enforceable obligation depends on the local statute; the prudent course is to execute and record a deed implementing the agreement rather than to rely upon the agreement to operate as a conveyance.

Divorce dissolves the unity of marriage and with it the estate. Where the decree disposes of the property, the decree governs, and in equitable-distribution jurisdictions the court's authority to allocate marital property makes the entireties character of the title largely a starting point rather than a conclusion. Where the decree is silent, the default rule supplies the answer, and the jurisdictions divide: the majority convert the estate into a tenancy in common, on the reasoning that survivorship between former spouses is unlikely to have been intended; a minority convert it into a joint tenancy, preserving survivorship until one of the parties severs. Snyder v. Lane, 141 S.E.2d 96 (W. Va. 1965), is representative of the majority rule.

Annulment presents the same question in sharper form, because a decree of annulment ordinarily declares that no valid marriage existed. The strict consequence is that the estate never arose, and the parties held from the outset as joint tenants or tenants in common according to the instrument and the local presumption. Many statutes now soften the result for the party who entered the marriage in good faith. Judicial separation, by contrast, does not dissolve the marriage, and in most jurisdictions leaves the estate intact — though a separation agreement dealing with the property will usually be given effect, and a handful of statutes treat a decree of separate maintenance as terminating the estate.

Two practical consequences follow the dissolution. First, the creditor immunity ends: the separate creditors of each former spouse may reach the interest allotted to that spouse, and a judgment lien that lay dormant during the marriage may attach upon conversion. Second, the record must be corrected. A decree that adjudicates the property should be recorded in the land records of the county where the land lies, and where the decree merely dissolves the marriage a confirmatory deed or a certified copy of the decree should be recorded so that a later title examiner is not left to infer the conversion.

The survivor's title vests by operation of law at the moment of death and requires no conveyance, no administration, and no order of court. What it requires is evidence. The standard practice is to record a certified copy of the death certificate together with an affidavit of survivorship identifying the deceased spouse, the instrument creating the estate, and the land affected; many jurisdictions prescribe the form and some also require a release of estate-tax lien or an affidavit of no tax due. Until those instruments are recorded the record title remains in both spouses, and a purchaser or lender from the survivor will require them as a condition of closing.

A title examiner reviewing a chain that includes an entireties conveyance should verify five matters: that the grantees were validly married when the estate vested; that the jurisdiction recognized the estate for property of that character at that date; that no joint conveyance, joint mortgage, joint judgment, or bankruptcy sale intervened; that no divorce, annulment, or statutory separation dissolved the marriage; and that the survivorship instruments are properly of record. Where a unilateral deed or mortgage from one spouse appears in the chain, its effect must be determined under the local rule described in § 18.11 — a nullity in some states, a conveyance of a contingent survivorship right in others — and the cloud removed or insured over accordingly.

Federal liens require particular attention after Craft. A notice of federal tax lien filed against one spouse alone is no longer a matter that a title examiner may disregard as inapplicable to entireties property, and it should be treated as an encumbrance requiring release, discharge, or a negotiated resolution before the survivor's title is certified.

Entireties ownership does two things well and several things badly. It transfers the property to the surviving spouse at the first death, automatically and outside probate, and it does so in a form that neither spouse can defeat alone. In recognizing jurisdictions of the prevailing type it also places the property beyond the reach of the separate creditors of one spouse, which is a substantial protection for a family whose principal asset is the residence and one of whose members carries professional or business exposure. For a married couple who own a home in such a state and who intend the survivor to take it, the estate is often the correct and sufficient answer.

Its limitations are equally definite. It accomplishes nothing at the second death, so a will or trust remains necessary for the ultimate disposition. It cannot be used to implement any dispositive plan more complex than “all to the survivor,” and in particular it defeats credit-shelter planning by removing the property from the first decedent's dispositive control. It offers no protection against joint creditors, against the United States, or against a court dividing property on divorce. It is available only while the marriage lasts. And it forfeits the double basis adjustment that community property enjoys under I.R.C. § 1014(b)(6): under I.R.C. § 2040(b) a qualified spousal joint interest is included as to one-half in the first decedent's estate and receives an adjustment only as to that half.

For couples who require more, the alternatives are a joint revocable trust, a tenancy-by-the-entirety trust in jurisdictions whose statutes preserve entireties immunity for property held in trust, a transfer-on-death deed, or in the community-property states the community-property-with-right-of-survivorship election examined in Chapter 19. Each achieves probate avoidance; they differ in the protection offered against creditors and in the flexibility of the ultimate disposition. The choice is a planning judgment, and it should be made explicitly rather than allowed to follow from the form in which a deed was drawn at the closing.

Legislative activity has moved in four directions. The first is extension: statutes conferring entireties status upon personal property, upon bank and brokerage accounts, and in several states upon property held in a joint revocable trust, so that the immunity survives a transfer into the trust. The second is clarification: statutes abrogating the unities of time and title for direct spousal conveyances, prescribing the language sufficient to create the estate, and specifying the effect of divorce upon a title held by the entirety. The third is restriction: homestead-cap and fraudulent-transfer provisions limiting the value that may be sheltered and the circumstances in which property may be moved into the protected form. The fourth is administrative: survivorship-affidavit statutes and standardized forms simplifying the clearance of record title at the first death.

A cross-cutting development is the effect of same-sex marriage. Since Obergefell v. Hodges, 576 U.S. 644 (2015), the fifth unity is satisfied by any valid marriage, and recognizing jurisdictions apply the estate without distinction. Several states have addressed by statute the position of couples who held property jointly before their relationship was recognized as a marriage, converting or permitting conversion of such holdings into entireties form.

The direction of reform is thus not abolition. The estate has proved durable because legislatures value what it does: it protects the family home, it simplifies the transfer of title at the first death, and it requires no professional intervention. What has changed is the vocabulary of justification. Modern statutes speak of spouses, of survivorship, and of exemption from process; they do not speak of the unity of persons, and the practitioner who argues from Blackstone rather than from the code will find the argument unavailing.

Tenancy by the entirety is the common-law marital concurrent estate. It requires the four unities of joint tenancy together with a fifth, the unity of marriage, and its defining structural feature is the absence of a divisible share: the spouses hold per tout et non per my, by the whole and not by the half. From that single proposition the incidents follow. Neither spouse may convey, encumber, or contract to convey the property alone; neither may sever the survivorship or compel partition during the marriage; the survivor takes the whole automatically at the first death, outside probate and beyond the reach of the decedent's will; and in the prevailing group of recognizing jurisdictions the property is immune from the separate creditors of one spouse.

The estate's history is a study in the survival of a rule beyond its rationale. Coverture supplied the premise, and Coke and Blackstone drew the conveyancing conclusion from it. The Married Women's Property Acts destroyed the premise, and the state courts divided three ways over the consequence; the intermediate position prevailed, preserving the estate while abolishing the husband's jus mariti and producing the modern rule of equal management. Twentieth-century equal-protection law removed what remained of the gendered incidents, and Obergefell extended the estate to all valid marriages. What justifies the estate today is not the unity of persons but the protection of the marital home and the security of the survivor.

The limits of the protection are as important as the protection itself. Joint creditors of both spouses may reach the property, and joint obligations are easily incurred. Transfers into entireties form on the eve of a claim are voidable under Uniform Voidable Transactions Act §§ 4–5. Bankruptcy admits the interest into the estate under 11 U.S.C. § 541(a) and restores the immunity only through the § 522(b)(3)(B) exemption, which fails against joint creditors and where both spouses file. And United States v. Craft holds that a federal tax lien under 26 U.S.C. § 6321 attaches to the delinquent spouse's rights notwithstanding the state-law characterization, with United States v. Rodgers governing the forced sale that follows. Divorce ends the estate and the immunity together.

Chapter 19 turns to community property. The change is not merely of subject but of tradition. Tenancy by the entirety is a common-law estate: it arises from the form of a particular conveyance, attaches to particular assets, and expresses a fiction about the persons of the spouses. Community property descends from the civil law of Spain and France, and it operates not upon conveyances but upon acquisitions: property acquired by either spouse during the marriage, other than by gift or inheritance, belongs to the community by force of law, whatever the form of title. The entirety protects a chosen asset by making it indivisible; the community classifies all marital earnings by making them shared. Understanding why the two systems reach different results on management, creditor exposure, survivorship, and basis at death — and why nine states and a growing number of elective regimes prefer the civil-law solution — is the work of the chapter that follows.

• Restatement (First) of Property §§ 189–193 (1936).
• Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 6.1–6.2 (2003).
• United States v. Craft, 535 U.S. 274 (2002); United States v. Rodgers, 461 U.S. 677 (1983).
• Sawada v. Endo, 561 P.2d 1291 (Haw. 1977).
• 1 William Blackstone, Commentaries on the Laws of England *430–*433 (1765).
• John H. Baker, An Introduction to English Legal History 519–536 (5th ed. 2019).
• John V. Orth, Tenancy by the Entirety: The Strange Career of the Common-Law Marital Estate, 1997 BYU L. Rev. 35.
• Richard H. Chused, Married Women's Property Law: 1800–1850, 71 Geo. L.J. 1359 (1983).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 5.5–5.6 (3d ed. 2000).
• 7 Richard R. Powell, Powell on Real Property §§ 52.01–52.05 (Michael Allan Wolf ed., 2023).