This page explains New York law. A tenancy by the entirety is a form of ownership available only to spouses, and it changes what a creditor of one spouse can do with the family home. Protecting marital property held as tenants by the entirety from creditors of one spouse is one of the matters listed on KOR Law LLP's post-judgment and enforcement defense page.
The key feature is the right of survivorship: when one spouse dies, the other owns the whole property automatically. The McCormick decision discussed below describes that right as one the surviving spouse "possessed from the moment of the original conveyance," not one that comes into being at death. For the wider picture of how a creditor collects, see what happens after a money judgment is entered against you in New York.
How is a tenancy by the entirety created?
Section 6-2.2 of the Estates, Powers and Trusts Law (EPTL) sets the default rules, and the deed or share transfer usually decides the question.
| Transfer | Result, unless the document expressly says otherwise | Rule |
|---|---|---|
| Real property to a husband and wife | Tenancy by the entirety | EPTL 6-2.2(b) |
| Co-op shares and the proprietary lease to a husband and wife, on or after January 1, 1996 | Tenancy by the entirety | EPTL 6-2.2(c) |
| Property to people who are not legally married but are described as spouses | Joint tenancy | EPTL 6-2.2(d) |
| Property to two or more other people | Tenancy in common, unless declared a joint tenancy | EPTL 6-2.2(a) |
Two details are easy to miss: co-op shares acquired by a married couple before 1996 are not covered by the default in 6-2.2(c), and a deed or share transfer can expressly create a joint tenancy or tenancy in common instead. The actual document controls.
What can a creditor of one spouse reach?
In McCormick 105 LLC v Avaras, decided July 8, 2026, the Supreme Court in Rockland County summarized the rules New York courts apply, relying on decisions of the Court of Appeals and the Appellate Division:
- A tenancy by the entirety "cannot be severed, converted, or partitioned by the unilateral act of one spouse or by the unilateral action of that spouse's individual creditor," and courts recognize "the absolute bar to involuntary partition" of entireties property.
- A creditor of one spouse may reach only that spouse's own interest, which is subject to the other spouse's right of survivorship.
- If the debtor spouse's interest is sold at an execution sale during the debtor's lifetime, the buyer steps into the debtor's shoes and becomes a tenant in common with the other spouse. The buyer may end up with the whole property if the debtor spouse survives, but the buyer's interest may be completely extinguished if the other spouse survives.
In practice, that makes the debtor spouse's interest an uncertain thing to buy, and the non-debtor spouse keeps the right to the whole property if he or she outlives the debtor. The creditor cannot force a partition that would cash out the non-debtor spouse. The decision applies the same rule when one spouse voluntarily conveys or mortgages his or her own interest: the buyer or lender steps into that spouse's shoes, subject to the same survivorship right.
How does a creditor go after one spouse's interest?
For a house or other real property, the steps run through the county clerk and the sheriff. Docketing the judgment with the clerk of the county where the property sits makes later transfers of the debtor's interest ineffective against the creditor until ten years after the judgment-roll is filed (CPLR 5203(a)). The creditor then delivers a property execution to the sheriff, who must give notice before any sale (CPLR 5236). Our page on property executions and sheriff sales covers the execution itself.
| Step | Rule | Timing the law sets | What the non-debtor spouse can check |
|---|---|---|---|
| Judgment docketed in the county | CPLR 5203(a) | Priority over later transfers of the debtor's interest until ten years after the judgment-roll is filed | Which spouse the judgment names |
| Notice of sale posted | CPLR 5236(c) | At least 56 days before the sale, in three public places | That it describes the right property |
| Notice served on the judgment debtor | CPLR 5236(c) | Served as CPLR 308 provides for a summons | That it names the right debtor |
| Notice to everyone with a recorded interest | CPLR 5236(c) | Served at least 30 days before the sale on each person with a record interest 45 days before it | Whether you were served, as an owner of record |
| Publication and sale | CPLR 5236(a), (c) | Sale between the 56th and 63rd day after the notice is first published | The sale date, so any motion is made before it |
The McCormick court held that the surviving spouse, who took title with her husband "as husband and wife," was a person with an interest of record entitled to notice under CPLR 5236(c). It also held that a notice naming the wrong debtor and the wrong parcel failed the statute's requirement that the notice contain a description of the property to be sold. For co-op shares, which are personal property, a creditor may instead ask the court to order them turned over; see what a turnover proceeding is and how to respond to one.
What if the debtor spouse dies first?
The McCormick decision addressed that situation directly. A creditor holding a deficiency judgment against a husband tried to sell a property he owned with his wife by the entirety. The execution papers served before his death named the wrong person and the wrong address, and a corrected execution came more than eighteen months after he died. The court held that where the debtor spouse dies before a valid execution sale of his interest is completed, the interest is "extinguished instantly and automatically" by the surviving spouse's right of survivorship, so nothing remains for a later sale to convey. It enjoined the sheriff's sale and held the widow was the sole owner. Every case turns on its own record, but the decision shows how much the timing and accuracy of the creditor's levy can matter.
A separate statute also applies whenever a judgment debtor dies. After the death, an execution generally may not be levied on property in which the debtor had an interest without leave of the Surrogate's Court that issued letters for the estate, or, if no letters issue within eighteen months, leave of a court where enforcement could proceed. A judgment lien on real property expires two years after the death or ten years after the judgment-roll was filed, whichever is later (CPLR 5208).
Do other protections apply at the same time?
- Homestead. A house, co-op or condominium the couple owns and lives in as a principal residence can also qualify for the homestead exemption, currently up to $204,825 above liens in New York City (CPLR 5206). See whether New York's homestead exemption protects a co-op apartment.
- Court supervision. CPLR 5240 lets the court deny, limit or condition any enforcement procedure, and the McCormick court treated it as an independent ground for the relief the surviving spouse sought. We explain that tool in whether a court can limit or stop a creditor's collection efforts.
- Other exemptions. Bank accounts, wages and household property have their own protections, listed in what property a New York judgment creditor cannot take.
- Federal bankruptcy law. 11 U.S.C. 522(b)(3)(B) allows a debtor to exempt an interest held as a tenant by the entirety to the extent it is exempt from process under nonbankruptcy law.
What changes the answer for your home?
- Whose debt it is. The rule protects against a creditor of one spouse; the McCormick court framed it around "that spouse's individual creditor." A judgment against both spouses is a different situation.
- The words in the deed. A deed to a married couple creates a tenancy by the entirety only "unless expressly declared to be a joint tenancy or a tenancy in common" (EPTL 6-2.2(b)).
- The date for a co-op. The co-op default applies only to transfers of shares on or after January 1, 1996 (EPTL 6-2.2(c)).
- Whether the couple was legally married. A transfer to people described as spouses who are not legally married to each other creates a joint tenancy (EPTL 6-2.2(d)).
- Who dies first, and when. If the debtor spouse dies before a valid sale is completed, the interest ends at death (McCormick). If the non-debtor spouse dies first, the debtor spouse, or a buyer of the debtor's interest, may end up with the whole property.
- Whether the sale papers were right. The notice of sale must describe the property and reach every owner of record in time (CPLR 5236(c)).
For example: a guaranty judgment against one spouse
For example, imagine a married couple in Brooklyn whose house was deeded in 2010 to "husband and wife," with no other ownership language. (This is a made-up illustration, not a real client or result.) The husband personally guaranteed a loan to his business, a kind of commitment our article on LLC-owned property and personal guaranties discusses. The lender later wins a $150,000 judgment against him alone and dockets it with the Kings County Clerk.
Because the deed creates a tenancy by the entirety, the lender can reach only the husband's interest, and it cannot force a partition or a sale of the whole house. It delivers an execution to the sheriff, and a notice of sale is posted 60 days before the sale date. The wife is an owner of record, so she must be served with the notice at least 30 days before the sale. She checks that the notice names the right debtor and the right property, and she speaks with a lawyer about a motion under CPLR 5240 before the sale date. Even if a buyer purchased the husband's interest, the buyer would hold it only as a tenant in common with her, and would lose it entirely if she outlived her husband. For the local steps in a Brooklyn case, see foreclosure and judgment defense for Brooklyn (Kings County) cases.
Common mistakes when one spouse owes the judgment
- Assuming instead of reading the deed. The default can be displaced by express words. Read the deed, or the stock certificate and proprietary lease, itself.
- Retitling the home after a creditor appears. A transfer made to hinder, delay or defraud a creditor can be undone, although an entireties interest that a creditor of only one spouse cannot reach is not an "asset" under that law (DCL 270(b)); see whether a creditor can undo a property transfer as a voidable conveyance.
- Assuming every co-op is covered. Shares transferred before January 1, 1996 do not get the co-op default.
- The non-debtor spouse ignoring the sale papers. An owner of record is entitled to notice under CPLR 5236(c) and can ask the court to act. Do it before the sale date.
- Treating a joint debt as one spouse's debt. If both spouses signed the note or guaranty and both are named in the judgment, this protection does not apply in the same way.
- Choosing bankruptcy exemptions without checking this one. The entireties exemption sits in the state-law set in 11 U.S.C. 522(b)(3); a debtor who elects the federal list in 522(b)(2) instead gives that set up.
What to do this week
- Get a copy of the deed, or for a co-op, the stock certificate and proprietary lease, and note the exact words used to describe the owners and the date.
- Find your marriage certificate and compare the date of marriage with the date of the deed or share transfer.
- Read the judgment and confirm which spouse it names.
- Collect any execution, notice of sale or petition, and write down the date and way each spouse received it.
- Mark the sale date on your calendar, and count back so any motion to the court is made well before it.
- Gather the rest of the papers on our checklist for when a judgment is enforced and arrange to speak with a lawyer.
Frequently asked questions
Can the creditor put a lien on our home?
The creditor can docket the judgment in the county where the home is, which gives it priority over later transfers of the debtor spouse's interest until ten years after the judgment-roll is filed (CPLR 5203(a)). Under the rules McCormick describes, that reaches only the debtor spouse's interest, still subject to survivorship. Our page on selling or refinancing with a judgment lien covers how a lien affects a sale or new loan.
What happens if the non-debtor spouse dies first?
The protection then works the other way. The surviving debtor spouse owns the whole property, and the McCormick decision notes that a buyer of the debtor's interest "may ultimately obtain the whole fee" if the debtor spouse survives. The homestead exemption may still protect part of the equity.
Can one spouse sell or mortgage his or her own share?
The McCormick decision says a spouse may convey or mortgage his or her own interest, and the buyer or lender steps into that spouse's shoes as a tenant in common with the other spouse. That interest stays subject to the other spouse's survivorship right. Neither spouse can force a partition of the whole property.
Does the protection carry into bankruptcy?
11 U.S.C. 522(b)(3)(B) lets a debtor exempt an entireties interest to the extent it is exempt from process under nonbankruptcy law, but only as part of the state-law set of exemptions in 522(b)(3). New York lets a debtor use its state set, including the homestead (Debtor and Creditor Law 282), or opt for the federal list instead (Debtor and Creditor Law 285). Compare both with a bankruptcy lawyer before filing.
How much weight does the McCormick decision carry?
It is a decision of the Supreme Court, the trial-level court, in Rockland County. The Law Reporting Bureau published it online, and the decision itself notes it will not appear in the printed Official Reports. Its statements of the core rules quote decisions of the Court of Appeals and the Appellate Division; its holding about a debtor spouse who dies before a valid sale applies those rules to one record.
Is the law different in New York City?
No. The EPTL defaults and the CPLR enforcement rules on this page apply statewide, and the judgment is docketed with the clerk of the county where the property is located. Sales under an execution are carried out by the sheriff.