Tenancy by the Entirety

April 13, 2006

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Tenancy by the entirety is a form of co-ownership that applies only to a husband and wife while they are married. It is based on the old common law view that a husband and wife are one person for purposes of owning property. As long as they are still married, neither the husband nor the wife separately have an interest that can be sold, leased, mortgaged or liened against. Nor can the property be partitioned or divided between them. Each spouse has an undivided interest in the whole property and the right to sole ownership when the other spouse dies. It is therefore necessary that any document relating to property held in a tenancy by the entirety be signed by both husband and wife.

Rick and Jane hold property in a tenancy by the entirety. Rick makes a deed that purports to transfer his interest in the property to Todd. Jane does not join in this deed. Thereafter, Rick dies. Jane now has full title to the property. Todd has nothing.

In those states that recognize tenancy by the entirety, generally any conveyance of property to a husband and wife will create a tenancy by the entirety, unless the deed or will specifically states otherwise. In states where it is not recognized, a conveyance specifying a tenancy by the entirety will create a joint tenancy with right of survivorship.

Since tenancy by the entirety is applicable only to a husband and wife during a valid marriage, if they divorce, the tenancy by the entirely is automatically converted into a tenancy in common with each person owning a one-half interest in the property. However, there are a few states that convert it to a joint tenancy with right of survivorship.