When two people get married, they often combine their lives in many ways - including their finances, raising a family, and owning property together. If they choose to buy a house, there is a way to share ownership called tenancy by the entirety.

Let's explore the meaning of tenancy in its entirety and the advantages and disadvantages of purchasing a house through this method.

 

What Tenancy by the Entirety Means

Tenancy by the entirety (TBE) allows married couples to own property jointly. This particular type of ownership means that both spouses have equal rights to the property and share ownership as a single legal entity. One spouse's death automatically makes the surviving spouse the sole owner.

 

How Tenancy by the Entirety Works

When a couple owns a property under TBE, both spouses have equal ownership rights. This means neither spouse can sell or put a lien on the property without the other's permission. Also, if one spouse is sued for unpaid debts, creditors cannot take the property away.

When one spouse dies, the other spouse becomes the sole owner of their property. This happens automatically, and there's no need to go through any legal procedures. It doesn't matter if the deceased spouse has children or other relatives; they cannot claim any portion of the property. However, it's important to remember that this only applies when the first spouse dies. If both spouses pass away together or the surviving spouse dies later, then the property will have to go through legal procedures.

 

Five Requirements of Tenancy by the Entirety

Typical requirements for TBE ownership include the following:

1. Unity of time: Both partners must become joint owners of the property at the same time.
2. Unity of marriage: The couple must be married according to legal requirements. In some states, couples may also be recognized as domestic partners. This means they have a special legal status that provides some of the benefits and protections of marriage.
3. Unity of title: It's important for couples buying a property together to make sure they both have their names on the same legal document proving ownership. Simply put, if you want to own a property together, you must get the title together through one legal deed.
4. Unity of interest: The couple who jointly own a property must have an equal interest in it.
5. Unity of possession: The couple must have an equal share of control and ownership.

 

The Pros and Cons of Tenancy by the Entirety

Pros

• Upon the death of their partner, one spouse inherits the property without probate.
• Provides protection for the shared property by preventing any claims against it from the estate of the deceased partner.
• Prevents either partner from selling or placing liens on the property without the other partner's consent.

Cons

• Only available in certain states and may not apply to all types of property.
• Does not guarantee the protection of the property from claims made against shared debts.
• Both partners must have an equal stake in the property and agree on related decisions.
• The property will still need to go through probate after the second spouse passes away..

 

States that Recognize Tenancy by the Entirety

Tenancy by the entirety (TBE) can only be obtained by married couples who live in places where this type of ownership is recognized by law. This type of ownership is recognized in 25 states and Washington, D.C. The following are the states (and districts) that acknowledge it:

 

• Alaska
• Arkansas
• Delaware
• District of Columbia
• Florida
• Hawaii
• Illinois
• Indiana
• Kentucky
• Maryland
• Massachusetts
• Michigan
• Mississippi
• Missouri
• New Jersey
• New York
• North Carolina
• North Dakota
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• Tennessee
• Vermont
• Virginia
• Wyoming

 

Tenancy by the Entirety v. Joint Tenancy

When it comes to who owns a property, there are two ways people can do it together: Tenancy by the Entirety (TBE) and Joint Tenancy. The main difference between them is that TBE is for people who are married or in a domestic partnership, while Joint Tenancy is for any two or more people who want to own something together. 

 

In TBE, both people own the whole property equally. In Joint Tenancy, everyone owns an equal part, but it might not be the whole thing. For example, if two people share Joint Tenancy, each one owns 50% of the property. 

 

Another difference between TBE and Joint Tenancy is how the law sees the people who own the property. In TBE, the law sees the couple as one unit. In Joint Tenancy, each person is treated as a separate legal unit. This can make a difference if one of the owners has debts that they owe to someone else. 

 

Both TBE and Joint Tenancy have something called "right of survivorship." That means if one of the owners dies, the other owner still owns the property. They don’t have to go to court or anything like that.

 

How Tenancy by the Entirety Can Be Terminated

If you own a property with your spouse under a Tenancy by the Entirety (TBE) arrangement, it's essential to know how to end it. In simple terms, TBE can be terminated in three ways, and all of them require the consent of the other spouse.

 

Death: If one spouse dies, the surviving spouse becomes the sole owner of the property without any legal proceedings. This means that the TBE ends automatically.

 

Divorce: If the couple divorces, the TBE arrangement comes to an end, and the terms of divorce determine what happens to the property.

 

Mutual agreement: If both spouses agree, they can terminate the TBE arrangement, but it's essential to remember that it can't be ended by only one spouse.

 

Rights of Tenants by the Entirety

In a tenancy by the entirety, neither party may sell the property without the consent of the other. For example, if a married couple buys a house through a tenancy by entirety arrangement, neither of them can sell the property without the other's consent. This is because both parties have a 100% ownership interest in the property.

 

Another benefit of tenancy by the entirety is that it can protect both spouses against certain liens. Creditors who are seeking payment on delinquent debts cannot attach claims to the property unless the married couple shares that debt. This means that if one spouse has a debt that is not shared with the other, the creditor cannot put a lien against the property.

 

For example, if one spouse owes money on a car that they bought for themselves, the lender cannot put a lien against the house that the couple owns together. This is because the house is under tenancy by the entirety, which offers a level of protection for both spouses' ownership rights.

Summary

Tenancy by the Entirety is a special type of ownership that allows married couples to jointly own property. In the event of a spouse's death, the property automatically passes to the surviving spouse. This type of ownership is recognized in 25 states and Washington, D.C., and comes with a set of requirements that must be met.

TBE provides several advantages, such as protecting the shared property and preventing claims against it from the estate of the deceased partner. However, it also has its drawbacks, as both partners must have an equal stake in the property and agree on decisions related to it.