RealTown Words

A special joint tenancy between a lawfully married husband and wife, which places all title to property (real or personal) into the marital unit, with both spouses having an equal, undivided interest in the whole property. In essence, each spouse owns the entire estate; neither spouse owns a fractional share but the property ownership is, instead, an indivisible entirety. Upon the death of one spouse, the survivor succeeds to the entire property to the exclusion of heirs and creditors of the deceased spouse and without the need for probate. Tenancy by the entireties is sometimes called a “poor man’s will.” Unlike a joint tenancy, neither spouse can convey his or her interest or force a partition during the lifetime of the other, without the consent of the other spouse.

Tenancy by the entirety property ownership exists in less than one-third of the United States. Based originally on the common-law theory that husband and wife are one person, this theory has been abandoned under modern law, which recognizes women’s rights in property separate from their husbands.

Both spouses can also voluntarily convert the tenancy into a tenancy in common or a joint tenancy. The tenancy by the entirety may be severed only by mutual agreement, divorce, or joint conveyance; it may not be severed by any attempt of one spouse to transfer his or her interest. Although an attempted unilateral transfer is ineffective, the transferor may still be liable to the transferee for money damages for breach of contract. Where divorce severs the tenancy by entirety, the parties become tenants in common (even where the entire purchase price was paid by one party). Upon the death of a spouse, the survivor should record an “affidavit of surviving tenant by the entirety” reflecting the fact of death.