Important Warnings with Respect to Property Held as Tenancy by the Entireties

Several states, including Florida and Texas, have statutory laws which prevent creditors from seizing real property held by, among others, married individuals under defined circumstances. These states explicitly make property held by Florida or Texas residents as a primary resident exempt from execution, levy and sale by a creditor.

New Jersey protects real property held by spouses that is deemed to be held as tenancies by the entireties from the reach of one spouse’s creditors. This is designed to provide protection for the surviving spouse. Ten Eyck v. Walsh, 139 N.J. Eq. 533 (Prerog. Ct. 1947); See Also Gery v. Gery, 113 N.J. Eq. 59 (E. & A. 1933).

Each spouse is deemed to have a right of survivorship which entitles him or her to obtain the property by operation of law upon the death of the other spouse. If a creditor of one spouse obtains a judgment against the one spouse, he can execute and levy upon the interest of this spouse in the property but he cannot terminate the right of survivorship in the other spouse and force the sale or partition of the property. See Newman v. Chase, 70 N.J. 254 (1976). The creditor would have to wait for the other spouse to die before he could force the partition of the property. If the other spouse, who is not indebted to the creditor, outlives the spouse who has a judgment against him, then the creditor would lose all
interest in the property.

Important Warnings with Respect to Property.pdf