Tenancy by the entirety
What is tenancy by the entirety?
Tenancy by the entirety refers to a form of concurrent estate ownership whereby a married couple jointly owns the entire property. When one partner dies, the survivor is authorized to take the decedent’s share, but unlike other forms of property ownership, like a joint tenancy, one tenant’s interest in the property can’t be sold without the other’s consent.
There are three forms of joint ownership: tenancy by the entirety, tenancy in common, and joint tenancy. Tenancy by the entirety describes a married couple that jointly owns real estate as one legal entity.
Tenancy by the entirety can only be created by spouses. Because they are considered a single unit, one spouse may not give away or sell the interest in the property without the knowledge of the other spouse. This contrasts with a joint tenancy and tenancy in common, where each tenant owns discrete shares of the property. Tenancy by the entirety assumes rights of survivorship for when one spouse dies, similar to a joint tenancy with rights of survivorship.
Neither tenant can express her interest in the property without the consent of the other, but they enjoy greater protections from creditors seeking to collect a debt from either spouse. That means creditors of one spouse may not attach and sell the interest of the spouse in debt.
The tenancy by the entirety can only be terminated by divorce, one spouse’s death, or the mutual agreement of both spouses. Tenants by the entirety have a unique benefit over other tenancy categories in that they avoid the process of probate in court.
A joint tenancy becomes a tenancy in common if one partner sells their interest, and no tenant gets the survivorship right. However, property conveyance cannot reduce tenancy by the entirety to a tenancy in common or a joint tenancy. Hence, tenancy by the entirety is created by any conveyance to a couple that presumptively preserves the unity.
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Tenancy by the entirety example
Dan and Rose are a husband and wife. They take out a mortgage on a property and agree to be tenants by the entirety when they sign the mortgage. Since they got the title jointly, neither of them can give away or sell the property without the consent of the other. They also will be equally responsible for paying the mortgage.