Publication Date

2023

Document Type

Article

Abstract

Lawyers practicing in the area of matrimonial law encounter the structuring of property transactions as their clients contem­plate marriage, during the marriage, and upon dissolution of the marriage. At all three periods in the life of a marriage, whether for creditor asset protection purposes, estate planning purposes, or dissolution purposes, whether and how to deviate from the state's default property laws is of utmost concern for the matri­monial lawyer. Of special concern is how default laws intended to protect the spouses' marital estate from creditors - including the tenancy by the entirety estate - may be implicated or abro­gated by transfers, particularly transfers to a trust.

This article explores the tenancy by the entirety concurrent estate, the concurrent estate enjoyed by married persons that has its origins in the English common law and which continues in one-half of the states, and considers the effect of its marital property protections in light of wider use of trusts by married couples. Specifically, the article explores how transfers of en­tirety property to a trust can jeopardize the creditor protection of the entirety estate. The article then explores the legislation in each of the roughly one-half of the twenty-five tenancy by the entirety jurisdictions in the United States that authorizes contin­uing protections for spouses against one spouse's separate credi­tors even after property held by the entirety is transferred to a trust.

Publication Title

Journal of the American Academy of Matrimonial Lawyers

Volume

36

Issue

1

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