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Tenancy by the Entirety

Sonia Nair Jan 27, 2019
A type of concurrent estate, tenancy by the entirety is meant for married couples. Go through this brief overview about this legal concept.
A concurrent estate is a legal concept that describes the various methods, through which a real property can be owned by more than one person. It is the specific type of ownership (of a concurrent estate) that determines the rights and liabilities of the concerned parties.
So it is highly important to understand the basics of the different types of concurrent estate, before choosing the right one. There are many different methods of owning a property jointly, like joint tenants in common, joint tenancy with the right to survivorship, and tenancy by the entirety.

Salient Features

It is one of those types of joint ownership of property, which is recognized in some states only. Tenancy by the entirety is meant for married couples, but in some states, legally registered domestic partners are also allowed to form this type of concurrent estate.
According to this concept, the spouses are treated as a single legal entity and each spouse owns the property as a whole and not in the divided form. While in some states, the transfer of title or ownership of real property to a married couple is presumed to create a tenancy by the entirety, in other regions, it has to be specifically mentioned in the deed.
✦ Each spouse has equal rights to enjoy and possess the property that is jointly owned by them as tenancy in the entirety. Only real property comes under the ambit of this provision. In some cases, even personal property is found to be included.
As in case of joint tenants with the right of survivorship, tenancy by the entirety too attributes a right of survivorship on each spouse. This means, on the death of one spouse, the other is entitled to the entire interest in the whole property.
However, the parties cannot unilaterally make any decision to sell or divide the property or to end the tenancy or to dispose off the property by will. Any decision regarding the property must be the joint decision of the spouses.
In case of a divorce, the tenancy automatically gets converted to tenancy in common, wherein the parties will be entitled to individual shares in the property.
One of the greatest advantages of tenancy by the entirety is that this type of concurrent estate can be a protective shield against creditors of any one spouse. In other words, the creditors cannot touch a jointly held property as a tenancy in the entirety.
This clause applies to debts contracted outside or before the marriage and not those contracted within the marriage. It may happen that a spouse with a huge personal debt inherits property as tenancy by the entirety, then also the property may be seized. If one of the spouses file a petition for bankruptcy, then the property will be shielded partially.
Another important aspect of this clause is that if the debtor spouse dies, then the lien cannot be enforced against the property, which will be owned by the non debtor spouse. But in case the debtor spouse survives, the lien can be enforced against the whole property.
In short, a tenancy by the entirety is meant for married couples, who acquire their interest in the property at the same time and through a single title. Both spouses must have equal interests and the right to possess and enjoy the property. This type of concurrent estate may not be touched by creditors.
However, such property cannot be partitioned, as per the request on any of the parties. If one of the spouses disappears or becomes incompetent, then the other may find it difficult to transfer the property.
If you are interested in this type of concurrent estate, try to understand the state laws regarding this concept. Seek legal advice from an expert lawyer and understand the pros and cons beforehand.
DisclaimerThe information provided is solely for educating the reader. It is not intended to be a substitute for the advice of a professional.