Tenancy by the Entirety

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Related to Tenancy by the Entirety: Joint tenancy, tenancy in common

Tenancy by the Entirety

A type of concurrent estate in real property held by a Husband and Wife whereby each owns the undivided whole of the property, coupled with the Right of Survivorship, so that upon the death of one, the survivor is entitled to the decedent's share.

A Tenancy by the Entirety allows spouses to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety.

There are three types of concurrent ownership, or ownership of property by two or more persons: tenancy by the entirety, Joint Tenancy, and Tenancy in Common. A tenancy by the entirety can be created only by married persons. A married couple may choose to create a joint tenancy or a tenancy in common. In most states a married couple is presumed to take title to property as tenants by the entirety, unless the deed or conveyancing document states otherwise.

The most important difference between a tenancy by the entirety and a joint tenancy or tenancy in common is that a tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant. Upon the death of one of the spouses, the deceased spouse's interest in the property devolves to the surviving spouse, and not to other heirs of the deceased spouse. This is called the right of survivorship.

Tenants in common do not have a right of survivorship. In a tenancy in common, persons may sell or give away their ownership interest. Joint tenants do have a right of survivorship, but a joint tenant may sell or give away her interest in the property. If a joint tenant sells her interest in a joint tenancy, the tenancy becomes a tenancy in common, and no tenant has a right of survivorship. A tenancy by the entirety cannot be reduced to a joint tenancy or tenancy in common by a conveyance of property. Generally, the couple must Divorce, obtain an Annulment, or agree to amend the title to the property to extinguish a tenancy by the entirety.

Further readings

Kurtz, Sheldon F., and Herbert Hovenkamp. 2003. Cases and Materials on American Property Law. 4th ed. St. Paul, Minn.: West.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

tenancy by the entirety

n. joint ownership of title by husband and wife, in which both have the right to the entire property, and, upon the death of one, the other has title (right of survivorship). Tenancy by the entirety is used in many states and is analogous to "community property" in the seven states which recognize that type of property ownership. (See: tenancy, community property)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
References in periodicals archive ?
(47) Any conveyance of land to husband and wife was a conveyance in tenancy by the entirety. (48) Prior to the expansion of women's rights in the mid-nineteenth century, the husband had many superior rights in property held in a tenancy by the entirety.
Act led to abolition of the tenancy by the entirety estate altogether.
"If the statute says that a husband and wife can have tenancy by the entirety protection through a land trust where they don't own legal title but only a beneficial interest, the same thing can happen through an inter vivos trust." Goltermann is currently seeking input from other practitioners on appropriate wording for transfer deeds.
(noting that tenancy by the entirety has been abolished in California,
Generally, a tenancy by the entirety cannot be terminated or severed unless both co-tenants agree to the severance.
Also, although tenancy by the entirety is common for home ownership, it is more difficult to title personal property that way.
Tenancy by the entirety is a special form of joint tenancy limited to ownership by husband and wife.
Once the unity of a joint tenancy or a tenancy by the entirety is severed, two equal sized shares are left, neither one of which is a majority interest.
The advantages of joint tenancy and tenancy by the entirety are that it is simple to arrange, and that, at the death of all joint tenants except the last one, title to the jointly-held property passes to the surviving joint tenant without the delay, expense, or legal entanglements and confusion of probate.
Craft, 4/17/02, that a husband's interest in a tenancy by the entirety was "property" or "rights to property" to which a Federal tax lien could attach, despite the fact that state (Michigan) law exempted such property from creditors.
The tenancy by the entirety doctrine is one of the most disputed and confusing issues facing bankruptcy courts.
Often, the residence is held in joint tenancy or in a tenancy by the entirety, in which case the residence would not pass under the will but rather would pass to the remaining joint tenant under operation of law.