TENANCY BY THE ENTIRETY: ASSET PROTECTION AND

SURVIVORSHIP

RIGHTS

Tenancy by the entirety is a form of concurrent ownership, traditionally in real

property, between a husband and wife. At common law, a tenancy by the entirety
could be created only if the traditional four unities of time, title, interest, and
possession existed, as well as a fifth unity requiring a valid marriage. At early
common law, a tenancy by the entirety was considered a “subspecies of joint
tenancy. “It was not considered a separate form of ownership until sometime after
the thirteenth century. Because husband and wife were considered one person
under the law for purposes of concurrent ownership, the tenancy by the entirety
was created to permit concurrent ownership between spouses. Under the typical
joint tenancy, such concurrent ownership was not possible until much later. To
create a tenancy by the entirety, all of the unities of the joint tenancy need to be
satisfied, and the tenants need to be legally married. Spouses hold per tout et non
per my interest in the property: both spouses hold the entire interest, rather than
one-half of the whole. Although this tenancy was originally created for married
couples, some jurisdictions today recognize the tenancy by the entirety in common
law marriages as well, unless the marriage resulted from a bigamous relationship.
In addition, some jurisdictions also recognize the tenancy by the entirety in other
types of quasi marital relationships, such as same-sex partnerships. Under early
common law, the tenancy by the entirety was characterized by the husband’s
exclusive control over his wife’s property, giving his creditors access not only to
his own interest, but to the whole property. The tenancy was created upon the
belief that the unity of marriage was personified in the figure of the husband, and
that all property was owned and controlled by him, including property owned by
the wife before marriage.

Contrary to joint tenancies, no spouse under a tenancy by the entirety may force
partition of the estate. A tenancy by the entirety may be severed only by
agreement of the spouses, a decree of divorce, or the death of one of the
spouses.

At common law, a tenant by the entirety possessed an interest that could not be
devised or passed through intestate succession. When an estate lacked either of
these two characteristics, a right of survivorship existed. As noted, this right was
characteristic of both a tenancy by the entirety and a joint tenancy. A
distinguishing factor between tenancies by the entirety and joint tenancies was that
a joint tenant, by an inter vivos alienation of his undivided share in the estate,
could destroy the other joint tenant’s right of survivorship. This right of alienability
did not exist in an estate held by tenants by the entirety because holders of such
estates each owned the whole of the estate and not an undivided share. Therefore,
only divorce or mutual agreement of the husband and wife could destroy a right of
survivorship for a tenancy by the entirety estate. All four traditional unities were
essential, as well as a fifth unity of marriage, to create a tenancy by the entirety at
common law. Because all of the unities had to be present at the time the estate was
created, a subsequent marriage after two individuals already possessed concurrent
interests in an estate did not transform the estate into a tenancy by the entirety.
Moreover, the creation of a tenancy by the entirety was presumed, regardless of the
intent of the parties, when a conveyance of property to a husband and wife met the
five unity requirements. This presumption was founded on the legal fiction that the
husband and wife were considered one person, and consequently, the husband and
wife could not truly own the estate concurrently because they only possessed a
single interest. Under this presumption, the marital unit held the estate in its
entirety and not in undivided shares per a joint tenancy.

Like Joint Tenancy, Tenancy by the Entirety is a form of ownership with rights of
survivorship. When one spouse dies the surviving spouse becomes the owner of the
entire property. Agnew Law Office PAGE 2 The most significant feature of
Tenancy by the Entirety rests in the asset protection afforded by this type of
ownership. Under a Tenancy by the Entirety, creditors of an individual spouse may
not attach or sell the interest in the residence of a debtor spouse. Only creditors of
the couple may attach and sell the interest in the property owned by Tenancy by
the Entirety (i.e. if the couple defaults on the mortgage note, the bank may still
foreclose on the property).

Unlike Tenancy in Common or Joint Tenancy, Tenancy by the Entirety will

only exist as long as ALL of the following conditions are met:

 The owners are husband and wife.

 The owners remain married to each other.
 The property is their personal residence.

Another 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
or her interest in the property without the consent of the other tenant. 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 his or her
interest in the property. If a Joint Tenant sells his or 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 mutually agree to amend the title to the property
to extinguish a Tenancy by the Entirety.