When one spouse owes the IRS and the other does not, the question every couple asks is the same: can the government take the house? The answer is not yes or no — it is “it depends on how the deed reads.” The federal tax lien reaches only what the liable spouse actually owns, so the form of co-ownership controls almost everything. This post walks through the common-law ownership forms a married couple uses; tenancy by the entirety follows a materially different set of rules and is treated in its own companion post.
The starting principle: the lien reaches the liable spouse’s interest
Under § 6321, the lien attaches to “all property and rights to property” of the delinquent taxpayer — and only of that taxpayer. It does not attach to the non-liable spouse’s separate interest. For real estate, the practical route to collection is rarely an administrative seizure; it is a judicial foreclosure suit under § 7403, where a court can order a sale and divide the proceeds. So the analysis always begins by asking exactly what interest the liable spouse holds.
Separate (sole) ownership
The simplest cases. If the liable spouse owns the property alone, the entire property is exposed — the lien attaches to all of it, and the IRS can seize and sell it or foreclose. If instead the property is the non-liable spouse’s separate property, the lien does not attach at all. The only way the IRS reaches it is by showing the title is not what it appears — that the non-liable spouse holds it as a nominee, that an entity is the taxpayer’s alter ego, or that the property was moved by a fraudulent transfer. Those theories are the subject of a separate post.
Tenancy in common
Tenants in common each own an undivided fractional share — not necessarily equal — and two features matter here. First, a tenant-in-common interest is freely transferable, so the IRS can levy on and sell the liable spouse’s fractional share, or alternatively foreclose under § 7403 and sell the entire property, compensating the non-liable co-tenant from the proceeds. Second, there is no right of survivorship: the interest passes by will or intestacy, which means the federal tax lien survives the taxpayer’s death and continues to encumber that share as it passes to the heirs. Death does not clear the lien from a tenancy-in-common interest.
Joint tenancy with right of survivorship
Joint tenancy adds a survivorship feature, and it produces the most counter-intuitive results. The lien attaches to the liable joint tenant’s interest, and the majority rule is that the entire property may be sold under § 7403 with the other joint owner compensated. But two wrinkles change the picture. First, in some states the attachment or enforcement of the lien severs the joint tenancy, converting it into a tenancy in common and extinguishing survivorship. Second, survivorship itself cuts both ways: if the liable joint tenant dies first, the interest is extinguished and the lien generally falls away as to the property, leaving the survivor to take it free; but if the liable joint tenant outlives the co-owner, the lien expands to encumber the entire property. A handful of states — Wisconsin and Connecticut among them — are exceptions where the lien survives the debtor’s death.
Community property — a note for other states
Florida and Massachusetts are common-law states, so the forms above are the relevant ones for most clients here. But for a client in a community-property state, the result can be harsher than any of the above: because each spouse holds a present, vested one-half interest in community property and the community is generally liable for debts, one spouse’s separate federal tax debt can reach the entire community in many such states. The rules vary by state, and converting community property into joint-tenancy form carries its own tax consequences — it is a question to run down jurisdiction by jurisdiction.
| How title is held | What the lien reaches | Forced sale | At death |
|---|---|---|---|
| Liable spouse’s separate property | The entire property | Levy/seize or § 7403 | Lien follows the estate |
| Non-liable spouse’s separate property | Nothing, absent nominee/transfer | No | — |
| Tenancy in common | The liable spouse’s fractional share | Sell the share, or § 7403 (whole) | No survivorship — lien follows the share to heirs |
| Joint tenancy (survivorship) | The liable spouse’s interest | § 7403 (whole); co-owner paid | Liable JT dies first → lien gone; survives → lien on whole |
| Community property (CP states) | Often the entire community | Yes | State-specific |
The forced-sale framework that ties it together
Across all of these forms, the IRS’s heavy tool is the same: a § 7403 suit asking a federal court to sell the entire property and distribute the proceeds by the parties’ interests, with the non-liable co-owner compensated for their share. That power comes from United States v. Rodgers, 461 U.S. 677 (1983), and the court retains limited equitable discretion to decline a forced sale. The mechanics of that suit — reducing the assessment to judgment and foreclosing — are covered in our foreclosure post.
The defenses
The defenses follow the principle. Pin down that the lien reaches only the liable spouse’s actual interest; establish the non-liable spouse’s separate ownership where it exists; pursue innocent-spouse relief on the underlying liability if the facts support it; contest any nominee, alter-ego, or fraudulent-transfer theory the IRS asserts; and, in a § 7403 action, press the Rodgers equities and the valuation of each owner’s interest. In joint tenancy, timing and survivorship are themselves part of the analysis.
The practical takeaway
For co-owned marital real estate outside a tenancy by the entirety, title form is destiny: it dictates what the lien reaches, whether the IRS can force a sale of the whole, and what death does to the lien. Know exactly how the deed reads and what the governing state law provides — and recognize that tenancy by the entirety, the strongest shield of all, plays by a different rulebook entirely.