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Tenancy by the entireties and Missouri bankruptcy exemptions.

What happens to the house if only one spouse files bankruptcy? Unless the other spouse agrees otherwise, nothing. Mo. Rev. Stat. section 513.475.2 provides that neither spouse may sale, mortgage or alienate the marital home unless the other spouse agrees. Any attempted transaction is null and void. Also see In re Anderson, 12 B.R. 483 (Bankr. W.D. Mo. 1981), which held that a creditor may only recover against property held by spouses as a tenancy by the entireties when the other spouse consents.

– ksmolawyer

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Missouri Court of Appeals upholds bankruptcy protection provided by Tenancy of the Entireties

          Recently, Kansas City Divorce Attorney Mark Wortman posted a concise summary of a recent opinion by the Missouri Court of Appeals regarding the creditor and bankruptcy protections provided by joint ownership in the form of Tenancy by the Entireties.  In light of the current economic turmoil, this post seems extremely timely, and I have decided to provide my own summary below.

justice-building-pillars          In Missouri (but not in Kansas), married couples may hold property in special form of joint ownership called Tenancy by the Entireties. Instead of the spouses being recognized as joint tenants each holding a 50% interest in the property, Tenancy by the Entireties treats each spouse as owning an undivided 100% interest in the property. In other words, the spouses are treated as one. Under Missouri law, there is a rebuttable presumption that property jointly owned by spouses is held as a tenancy by the entirety. A party may rebut this presumption by showing that the weight of the evidence leaves no doubt that the property was not held as a tenancy by the entirety. Additionally, spouses may severe a tenancy by the entirety by consent, agreement, or acquiescence.

          As Mr. Wortman stated creditors of only one spouse, may not seek satisfaction of their debts against tenancy by the entirety property. Similarly, “tenancy by the entirety property is . . . exempt in bankruptcy provided that only one spouse is filing.” This exemption does not apply when both spouses file for bankruptcy.

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