Joint vs. Separate Ownership of Physician Assets


 Dr. David Marcinko MBA CMP®

J. Christopher Miller; JD


Do you remember when Andy DuFresne confronts the chief guard of his prison in The Shawshank Redemption and tells him to divert an inherited sum of money into his wife’s name? Even sixty-five years after the 1949 setting of that conversation, a common means of protecting assets from the reach of creditors is to transfer property into a spouse’s name. Assuming that the spouse is not also at substantial risk of being the target of lawsuits because of the spouse’s profession or lifestyle, it is an effective means of accomplishing that goal. Creditors with valid judgments against an individual may only attach and seize those assets owned by that individual.  Anything worth doing is worth doing right, however, and there are several pointers to structuring asset ownership in a way that maximizes its protective value.


A small number of states, such as Hawaii, Pennsylvania, and Florida, have statutes that automatically protect property jointly owned by spouses from creditors of either spouse, but often not from creditors of both spouses together. Property that benefits from this characterization is held in as a “tenancy by the entirety,” and prevents only one spouse from transferring away property that the married couple obtained together.  Again, variation in state law determines just how beneficial the formation of a “tenancy by the entirety” can be from an asset protection standpoint.  This protection comes from a public interest in the preservation of marital assets, such that one spouse’s indiscretion may not harm the position of the other spouse. 

The most significant limits to the advantage provided by the tenancies of the entirety are first, that the creditors with claims against both spouses may seize such jointly held property, and second, that upon the first death between the spouses, the property flows directly to the surviving spouse alone, who then no longer has the benefit of the creditor protection.  Moreover, in April of 2002, the U.S. Supreme Court sharply curtailed the benefit provided by tenancies by the entirety by ruling that it does not shield an asset from the federal authorities, even if the tax liability was incurred only by one spouse.[1]

Some states in the South and West are community property states, which is similar to, but not the same as, tenancy by the entirety.  Under the community property theory, all property acquired by either spouse during the residency in that state (or in some states, prior to or during the residency), will be considered jointly owned property even if titled to an individual spouse. Merely by moving to one of these community property states, a person can automatically shift assets, thus reducing the quantity of assets subject to the creditors of the wealthier spouse.


Community property and land owned as tenants-by-the-entirety is different from a third type of ownership called Joint Tenancy with Rights of Survivorship, sometimes abbreviated as “JTWROS”.  Joint tenancy with rights of survivorship may ease some burdens associated with probating a decedent’s estate, but this form of ownership is not ideal when viewed through the asset protection prism.

An alternative is to hold assets in the name of one spouse or the other, or as “tenants-in-common.”  Tenancy-in-common is best described as a situation in which each spouse owns a one-half undivided share in the property, but does not have the automatic right to full ownership at the death of the other spouse. 

Three advantages flow from this form of ownership:

Asset Protection-Protect Your Assets from Lawsuits ...
  • Neither spouse owns the property exclusively.

A creditor seizing the interest of one spouse would not have a valuable asset because it could not evict the remaining spouse, so creditors will attack these assets only as a last resort to satisfy their claims. However, a lien recorded against either fractional interest would have to be satisfied upon its sale, so that the net proceeds would be reduced by the amount of the lien.  For this reason, tenancy-in-common is only a temporary means of protecting an asset from an adverse judgment, and not quite the same as fully separate ownership.  This flaw is one reason why many estate planners recommend the funding of property into the name of a spouse or family member less vulnerable to adverse judgments.

  • If either spouse were to die, only half of the property would be subject to estate tax.

Ownership of property as tenants-in-common helps in the estate planning arena by facilitating the process of equalizing the assets held by each spouse. Changes made during 2010 and 2013 to the estate tax laws have pushed the federal estate tax exemption above $5 million, so fewer individuals (less than ½ of 1% of the general public by some estimates) will realize an actual tax savings from such planning. Even more appealing is that surviving spouses can now claim the unused exemption left behind by a deceased spouse. Estate tax concerns are now playing a much smaller role in recommending how spouses own their property.

  • A dying spouse has the ability to control how his or her interest is distributed.

In many simple Wills, all property of a spouse is given by bequest to the surviving spouse.  Such a bequest could include partial ownership interests in real estate.  If the surviving spouse is concerned about asset protection, this additional property would not be beneficial because it would easily be sacrificed to the survivor’s creditors.  One way of avoiding this result is to build an estate plan in which each spouse bequests the partial interest owned by that spouse to a trust.  At the first death between two spouses, the trust will hold the partial ownership interest for the benefit of the surviving spouse.  The trust holding the partial residence interest preserves the deterrent faced by creditors of the surviving spouse because seizure of the surviving spouse’s interest would not terminate the spouse’s right to use the land provided for in the trust.

A different set of rules applies to property held jointly by medical professionals who are not married to each other. If property is owned jointly among siblings or business associates instead of a business entity, the owners should make sure that the deed names them as tenants-in-common.  Otherwise, each successive death among the owners will shift the ownership to the survivors, and leave the family of the deceased owner with no lasting value from the owner’s investment into the property and its improvements.


Assets should be held in a way that protects them from creditors for the long term. The form of asset holdings should thus be a significant part of the discussions held with professional advisors, so that the protection lasts beyond your death or that of your spouse. Structure the protected assets so that they do not flow back to you if your spouse should pass away.  In this manner, integrated asset protection, estate planning, and financial planning unite to protect the family’s interests by extending the benefits of creditor protection for the long term.

ASSESSMENT: Your comments are appreciated.


[1] See United States v. Craft, 535 U.S. 274 (Apr. 17, 2002).

Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors : Best Practices from Leading Consultants and Certified Medical Planners™ book cover

ORDER Textbook:




Join Our Mailing ListA Brief History of the Holiday

Labor Day: How it Came About – What it Means

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a cofounder of the American Federation of Labor, was first in suggesting a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”

But Peter McGuire’s place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, 1883.

In 1884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a “workingmen’s holiday” on that date. The idea spread with the growth of labor organizations, and in 1885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 21, 1887. During the year four more states — Colorado, Massachusetts, New Jersey, and New York — created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.

A Nationwide Holiday

The form that the observance and celebration of Labor Day should take were outlined in the first proposal of the holiday — a street parade to exhibit to the public “the strength and esprit de corps of the trade and labor organizations” of the community, followed by a festival for the recreation and amusement of the workers and their families. This became the pattern for the celebrations of Labor Day. Speeches by prominent men and women were introduced later, as more emphasis was placed upon the economic and civic significance of the holiday. Still later, by a resolution of the American Federation of Labor convention of 1909, the Sunday preceding Labor Day was adopted as Labor Sunday and dedicated to the spiritual and educational aspects of the labor movement.

The character of the Labor Day celebration has undergone a change in recent years, especially in large industrial centers where mass displays and huge parades have proved a problem. This change, however, is more a shift in emphasis and medium of expression. Labor Day addresses by leading union officials, industrialists, educators, clerics and government officials are given wide coverage in newspapers, radio, and television.

The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership — the American worker.



Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact:

Product DetailsProduct DetailsProduct Details

  Product DetailsProduct Details

%d bloggers like this: