LawRefs Customized Legal Information
Attorney Renee C. Walsh

Michigan Tenants by the Entireties

Inquiry: Can creditors of either spouse attach attach property owned by the entireties”. I have read that real property owned by married couples in Michigan as “tenants by the entireties”, may be exempt from liens or judgments against an individual spouse. Judgments that were against both spouses could attach a property owned as “tenants by the entireties”, while a judgment against an individual spouse could not attach the property. I have also read articles that contradict this. Is it true that owning Michigan property as “tenants by the entireties” would provide some legal protection? If so, this seems very powerful. I would then think that a married couple should hold their home as “tenants by the entireties”, while ownership of things that might get you sued (cars) should be held individually.

Isn’t property held by a married couple in Michigan automatically “tenants by the entireties” and does not need to be specified as such on the deed. Even if it is true, several federal cases regarding property located in Michigan, seem to hinge on “tenants by the entireties” being explicitly mentioned in the deed, and since “tenants by the entireties” does not exist in all states and several other forms of joint ownership also exist, maybe tenants by the entireties should be explicitly mentioned in a deed, in case of federal action. Furthermore, if not defined in the deed, the type of ownership might be open to argument or interpretation by a lawyer or judge.

Response:Real property held by joint tenancy passes to the survivor of the joint tenant upon death. While creditors may attach the property of the individual owner during the lifetime of the joint tenants, this opportunity is extinguished upon the death of the debtor because the property passes immediately upon the debtor’s death to the surviving joint tenant. Property that is taken by the entireties is treated differently.

Michigan law provides that unless the conveyance explicitly indicated some other kind of tenancy was intended, a grant of real estate to husband and wife is deemed to have created a tenancy by the entireties versus a joint tenancy. DeYoung v Mesler, 373 Mich. 499 (1964), Butler v Butler, 122 Mich. App. 361, 332 N.W. 2d 488 (1983). Thus, if a married couple procures a loan together and each become obligated on the loan, the lender can attach property the couple holds by the entireties. Matter of Grosslight, 757 F.2d 773 (1985). This makes sense. The married couple procured the loan together and should each become obligated on the loan allowing their property can be attached to satisfy the loan. On the other hand, if one spouse, but not the other becomes obligated on a loan, the property that spouse owns by the entireties cannot be sold or encumbered to satisfy the debts of the other spouse. Entireties property cannot be involuntarily sold or encumbered for the debts of just one of the parties. Albinak v Kuhn, 149 F.2d 108 (1945). Note however that Federal tax liens are given special treatment and that if fraud is involved, the dynamic changes as creditors can attach property held by the entirety that was a part of a plan to hinder, delay or defraud creditors. MCL §566.221.

As to personal property, there has been some contention in the courts with regard to stocks and checks made payable to husband and wife for example. In situations where there may be an argument, creditor protection is most secured where entireties property is created as evidenced by the intent of the parties to create such a tenancy having documented the tenancy by noting the conveyance language “to H and W as Tenants by the Entireties”.

Discussion:

  1. My father died this past August. He deeded over his Tenton, Michigan home to myself and my two brothers (both brothers live in Michigan.) His wish and will states everything he owned be sold and divided among the three of us. Immediately after his funeral, one brother moved one of his sons into the home and began collecting rent from him. Two months ago, he moved this son out and placed another son, his wife and three small children into the house and is collecting rent. My other brother and I (I live in Florida), just found out about this. What can we do to remove these unwanted renters and sale the property as my father wished?

    • Dear John S.:

      If the Will provides that the house should be sold and the proceeds split between the children, then that is what should be done. Consider opening an estate in the probate court in the county in which your father died. Your father’s Will likely appoints a Personal Representative. If it does not, then you or your brother could be appointed. As the Personal Representative, you can file the proper paperwork for eviction – to wit, a notice to quit. You can use your authority as two brothers and send a letter and notice to quit without going through the court, but legally, the Will should be filed with the probate court and properly administered.

  2. What is the exact statute that declares that property acquired by husband and wife is automatically "tenancy by the entirety"?

  3. What if wife owns home and pays mortgage. Can husband’s creditor put lien on wife’s house?

    • Dear Mr. Murphy:

      A creditor cannot take property that does not belong to the debtor. Therefore, if the property is solely in your wife’s name, the creditor would not be able to attach it. However, consideration should be given to MCL 566.34 Michigan’s Uniform Fraudulent Transfer Act, which provides that:

      (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation in either of the following:

      (a) With actual intent to hinder, delay, or defraud any creditor of the debtor.

      (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor did either of the following:

      (i) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction.

      (ii) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

      (2) In determining actual intent under subsection (1)(a), consideration may be given, among other factors, to whether 1 or more of the following occurred:

      (a) The transfer or obligation was to an insider.

      (b) The debtor retained possession or control of the property transferred after the transfer.

      (c) The transfer or obligation was disclosed or concealed.

      (d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.

      (e) The transfer was of substantially all of the debtor’s assets.

      (f) The debtor absconded.

      (g) The debtor removed or concealed assets.

      (h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.

      (i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.

      (j) The transfer occurred shortly before or shortly after a substantial debt was incurred.

      (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

  4. Well that’s really something. It’s almost like the marriage is an incorporation, and the corporation owns the real estate. The couple just lives there. I think that there is an exemption in the law for mortgages. They can always foreclose, but it sounds like it may protect the homestead in bankruptcy, if only one spouse were to go bankrupt. Thank you for researching it.

    • Dear VR:

      Yes, it is something and is based upon the notion that the husband and wife unity is a separate and distinct legal person from the husband and wife individually. Since it is a separate entity, its interest cannot be severed by either party alone except that one spouse may convey his or her interest to the other. If the parties marry after becoming owners of the property, then no tenancy by the entireties is created. If the parties’ marriage is terminated, the entirety estate changes to an estate as tenants in common as to the property.

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