A tenancy by the entirety is a form of joint possession of real property. Tenancy by the entirety is joint ownership of property by a husband and wife who are treated as a single entity. Both husband and wife are able to possess and use all of the property. If one spouse dies, the other inherits the whole property. Neither husband nor wife is able to sell any part of the property without the other's consent.
The creation of a tenancy by the entirety is much like the creation of a joint tenancy plus marriage. In order to form a tenancy by the entirety, five conditions must be met:
- Requires marriage
- Husband and wife must acquire the property at the same time
- Husband and wife must acquire title by the same will or deed
- Husband and wife must have identical interests in the property
- Husband and wife must an equal right to possession
If any one of these conditions is missing, most courts will presume that the more favored tenancy in common is formed.
About half of the states recognize tenancy by the entirety. The modern trend among states is to abolish tenancy by the entirety. Many states no longer favor it because often creditors of one spouse cannot levy against property held in tenancy by the entirety.
How Can I Terminate My Tenancy by the Entirety?
There are four ways a tenancy by the entirety may be terminated:
- Divorce- Upon divorce, tenancy by the entirety is terminated because the condition of marriage no longer exists. The terms of the divorce will dictate what happens to the property.
- Joint Conveyance- Husband and wife can agree to convey title to the property to a third party. This can be done through gift or deed.
- Express or Implied Agreement- Husband and wife can agree to terminate the tenancy by the entirety. In most cases, a tenancy in common will be formed.
- Death- Upon the death of a spouse, the surviving spouse inherits title to the whole property.
Do I Need a Lawyer to Terminate My Tenancy by the Entirety?
An experienced attorney may be useful in helping you terminate your tenancy by the entirety. If you and your spouse wish to jointly convey the property, a real estate lawyer will be able to guide your through the transaction. If you and your spouse agree to terminate the tenancy by the entirety, a real estate lawyer will be able to help you create a new form of joint or independent ownership of the property. A divorce attorney will be able to guide you through the divorce process and ensure that you receive your fair share of property. An estate administrator can advise you of your property rights upon the death of a spouse.