Tenant By Entireties For Personal Property In Other States

ByJon Alper Tenants by Entireties

Some states other than Florida have tenants by entireties protection. The protection is not equal among states.

In some states, tenants by entireties ownership is available for only real property. Other states have entireties ownership for personal property as well as real property. Even in states that protect both real and personal property owned as tenants by entireties the creditor protection is not a great as Florida’s entireties exemption.

Consider, for example, on of my married clients facing a potential civil judgment The client holds a promissory note, secured by a mortgage,  payable to he and his wife by a North Carolina resident arising out of the sale of North Carolina real property. The property was owned jointly by my client and his wife. The face of the note does not specify entireties ownership. The note states that payments are made by separate, equal check to the husband and to his wife. The husband is facing a potential judgment.
  In the event North Carolina law applies to determine ownership of the note, what is North Carolina law regarding entireties title to personal property. North Carolina law recognizes tenants by entireties ownership of personal property such as a promissory note.

In Florida personal property owned by a married couple is presumed to be owned by the entireties. The creditor must rebut the presumption. In North Carolina there is no presumption of entireties ownership of personal property. Personal property is not owned by the entireties unless entireties ownership is included in the ownership title. Therefore, under North Carolina law, if applicable, this note would probably not be entireties property whereas in Florida the same note would be presumed to be entireties and protected against the husband’s creditors.

If Florida law applied, the issue is whether the presumption of entireties is rebutted on the face of the note by the direction that the maker pay separate monthly checks to the debtor and his spouse.

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Jon Alper is an expert in asset protection planning for individuals and small businesses.

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