No. The house is safe from Mr. Endo's personal debt. Think of 'tenancy by the entirety' as a protective bubble around the property. Under this type of ownership, the couple owns the house together as one single person, not as two people with separate halves. You can't break that bubble to get at one person's supposed 'share' because separate shares don't exist. This rule is important because it protects the family home and ensures one spouse's mistake doesn't leave the whole family homeless. People lending money should check first if a person's assets are co-owned this way.

Yes. Creditors should be able to go after one spouse's interest in the house. The idea that a married couple is a single legal entity is old-fashioned. Modern laws treat spouses as equals and as separate individuals. If they are equals, their property interests should be treated equally, meaning their individual creditors should be able to make a claim against their individual interest in the property. The court's decision unfairly protects a debtor and makes it harder for victims like the Sawadas to be paid for their injuries.

No, a creditor of just one spouse cannot take the couple's special co-owned property during their lifetime, because laws made husbands and wives equal owners and let them use and sell the property together while married. Neither spouse owns a separate piece that can be taken or sold alone. Kokichi and Ume giving their property to their sons was not cheating Kokichi's creditors, because making this special co-ownership can't be used to cheat creditors, and the property wasn't used to get the debt. The couple must agree together to end their special co-ownership, because not being able to split it is a key part of this type of ownership.

I disagree with the majority and think a husband's right to inherit the whole property if his wife dies can be sold by him or taken by his creditors, because the laws just made wives equal to husbands in owning the property, taking away the husband's power over the wife's share, but not changing the husband's own rights. Giving away the husband's share should be undone if it cheats his creditors, using rules about unfair transfers.

No, a creditor of just one spouse cannot take the couple's special co-owned property during their lifetime, because the law made husbands and wives equal owners and allows them to use and sell the property together while married. Neither spouse owns a separate piece that can be taken or sold alone. We conclude that Kokichi and Ume giving their property to their sons was not cheating Kokichi's creditors, because creating this special co-ownership cannot be used to cheat creditors, and the property was not used to get the debt. We also conclude that both spouses must agree together to end their special co-ownership, because not being able to split it is a key part of this type of ownership.

Yes, a creditor can take a married person's share in property that the couple owns together in a special way during the couple's lifetime. I disagree with the majority because a husband's right to inherit the whole property if his wife dies can be sold by him or taken by his creditors, since the laws just made wives equal to husbands in owning the property, taking away the husband's power over the wife's share but not changing the husband's own rights. Giving away the husband's share should be undone if it cheats his creditors, using rules about unfair transfers.

"The interest of a husband or a wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses."

The Acts confirmed her right to the use and enjoyment of the whole estate, and all the privileges that ownership of property confers, including the right to convey the property in its entirety, jointly with her husband, during the marriage relation.

In a tenancy by the entirety, "neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution."

Further, the creation of a tenancy by the entirety may not be used as a device to defraud existing creditors.

Both spouses must agree to a termination of a tenancy by the entirety for one spouse alone cannot remove the entirety characteristic: The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety.

This rule creates no unfairness to creditors: "If a debt arose prior to the creation of the estate, the property was not a basis of credit, and if the debt arose subsequently the creditor presumably had notice of the characteristics of the estate which limited his right to reach the property."

Sawada addressed whether a creditor could reach property that was held in a tenancy by the entirety at the time the creditor's claim arose, and which was subsequently transferred from the debtor and his wife to their children.

—describing judicial revolutionizing of common law tenancy by the entirety by reworking rights of husbands and wives

Other courts, however, have held that the Married Women's Property Acts took away the husband's power of control over his wife's property, equalizing them in such a manner that neither could alienate entireties' property without the consent of the other.

Under Hawaii law, the interest of a husband or a wife in an estate held as tenants by the entireties is not subject to the claims of his or her individual creditors during the lifetime of the other spouse.

No. The interest of a spouse in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses. This court adopts the view that the legal unity of husband and wife, a core tenet of tenancy by the entirety, means they own the property as a single entity, not as individuals with divisible shares. The Married Women's Property Acts equalized the spouses' rights but did not destroy this unity, instead converting it into a 'unity of equals.' Therefore, neither spouse has a separate interest that can be alienated or attached by creditors without the other's consent. Public policy favors protecting the family unit and the marital home over the interests of an individual spouse's creditors, who can protect themselves by investigating a debtor's assets before extending credit.

Yes. The separate interest of a spouse in entireties property should be subject to attachment by their separate creditors. The Married Women's Act effectively destroyed the legal fiction of unity between husband and wife and created equality between them. This equality should extend to rights and disabilities; if a husband's interest was historically alienable, a wife's should be as well, and both should be subject to the claims of individual creditors. The majority's holding illogically restricts the spouses' freedom to deal with their respective interests and is at odds with modern policy trends. A creditor should be able to levy and execute upon a debtor spouse's separate right of survivorship.

No, the interest of one spouse in real property held in tenancy by the entirety is not subject to levy and execution by his or her individual creditors during the joint lives of the spouses, because the Married Women's Property Acts equalized the positions of the spouses and confirmed their right to use, enjoy, and convey the property jointly during the marriage. Neither spouse has a separate divisible interest in the property that can be conveyed or reached by execution. The conveyance by Kokichi Endo and Ume Endo to their sons was not in fraud of Kokichi Endo's judgment creditors, because the creation of a tenancy by the entirety cannot be used to defraud creditors, and the property was not a basis of credit for the debt. Both spouses must agree to any termination of a tenancy by the entirety, as the indivisibility of the estate is an indispensable feature of the tenancy by the entirety.

I disagree with the majority and believe that the separate interest of the husband in entireties property, at least to the extent of his right of survivorship, is alienable by him and subject to attachment by his separate creditors, because the Married Women's Act merely eliminated any inequality in the positions of the spouses with respect to their interests in the property, thus depriving the husband of his former power over the wife's interest, without thereby altering the nature and incidents of the husband's interest. A voluntary conveyance of the husband's interest should be set aside where it is fraudulent as to such creditors, under applicable principles of the law of fraudulent conveyances.

Yes, the separate interest of the husband in entireties property, at least to the extent of his right of survivorship, is alienable by him and subject to attachment by his separate creditors. I disagree with the majority because the Married Women's Act merely eliminated any inequality in the positions of the spouses with respect to their interests in the property, thus depriving the husband of his former power over the wife's interest, without thereby altering the nature and incidents of the husband's interest. A voluntary conveyance of the husband's interest should be set aside where it is fraudulent as to such creditors, under applicable principles of the law of fraudulent conveyances.

Sawada v. Endo

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