A key component of asset protection in Virginia is the extension of the tenancy by the entirety to personal property. This extension occurred through legislative grant. While often also used in the context of real property and protecting real property against third party claims, Virginia recognizes the tenants by the entirety form of ownership over personal property. This form of asset protection is only available to married persons, and, in the context of personal property, it applies whether or not personal property represents the proceeds of the sale of real property.
Parties engaged in comprehensive estate or succession planning, particularly professionals and those with real property interests, should carefully consider these protections and their scope afforded under Virginia law. Moreover, in considering the powers of trustees in trust instruments or agents under powers of attorney, consideration should be given to whether the powers of trustees or agents (formerly, “attorneys-in-fact”), particularly when these roles may be occupied by successors, should be limited in the case of tenants by the entirety property, and whether these limitations should apply equally to real property and personal property.
The grant of a power to sever or convey tenancy by the entirety property should be carefully evaluated, particularly if either spouse has strong opinions or specific intentions regarding such property’s ultimate disposition.
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