Are you worried about losing your family home or other joint property during bankruptcy?
The tenancy by the entireties exemption is a popular tool for protecting assets owned by married couples.
Sounds pretty straightforward, right?
The tricky part is figuring out what to do when the property is in another state.
Bankruptcy exemptions are vital tools for individuals and couples dealing with financial difficulties. One of the most popular exemptions is the tenancy by the entireties exemption, which shields property jointly owned by spouses from being liquidated to pay off the debts of one spouse. Couples must be legally married and jointly own the property to claim this exemption.
Here are a few more details about the tenancy by the entireties exemption:
Now, let’s explore how this exemption works for real property outside the state where the owners reside.
Courts typically look to the law of the state where the property is located when determining whether this exemption applies to out-of-state property. That said, it’s not always a straightforward decision, as the courts may have a variety of factors to consider.
For example, some states require specific documentation, such as filing a declaration of tenancy by the entireties, to claim the exemption. And if the law of the state where the property is located conflicts with the bankruptcy laws of the state where the debtor resides, applying for the exemption could create a conflict.
In other words, the exemption might not apply to out-of-state property in a state that does not recognize this type of tenancy, as courts have taken a nuanced approach to those types of cases.
Joint tenancy is another form of property ownership in which each owner has an equal share in the property, and when one owner passes away, their share is automatically passed on to the other owner(s) without going through probate.
In contrast, tenancy by the entireties is a form of joint ownership only available to married couples, offering additional protection against creditor claims. In tenancy by the entireties, both spouses have an undivided interest in the property, and creditors cannot go after the property to satisfy the debts of only one spouse.
This protection applies to both in-state and out-of-state property, as long as the state where the property is located recognizes tenancy by the entireties.
The tenancy by the entireties exemption can be a valuable tool for protecting joint property from creditor claims during bankruptcy. However, it’s important to avoid the typical roadblocks:
There are, of course, some notable exceptions.
For example, say both spouses are jointly responsible for paying debts. They have joint credit cards and are equally responsible for repaying their respective cards. In cases like this, the tenancy by entireties exemption might not apply, as creditors could seize property to satisfy outstanding obligations.
And, of course, any evidence of fraudulent intent could void this exemption. For example, if a creditor can show that a debtor transferred a property into joint tenancy to avoid paying the debt, then courts may view the transfer as fraudulent and allow creditors to seize the property to satisfy the obligations.
Again, the burden of proof lies with creditors to demonstrate why an exemption should not apply in these situations.
Thinking about applying for the tenancy by the entireties exemption but uncertain whether an exception might apply? Consult with an experienced bankruptcy lawyer. The Van Horn Law Group can guide you through this process while helping you avoid potential pitfalls along the way.
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