Tenancy by the Entirety
Tenancy by the entirety is a form of co-ownership available only to married couples that includes the right of survivorship and protection from individual creditors, treating the couple as a single legal entity.
Exam Tip
Tenancy by entirety = married couples ONLY. Five unities required (includes marriage). Right of survivorship + creditor protection. Neither can act alone.
What is Tenancy by the Entirety?
Tenancy by the entirety is a special form of property co-ownership available exclusively to married couples. It provides right of survivorship (like joint tenancy) plus additional protection from individual creditors. The couple is treated as a single legal unit, and neither spouse can transfer or encumber their interest without the other's consent.
Key Characteristics
| Feature | Description |
|---|---|
| Married couples only | Must be legally married at time of acquisition |
| Right of survivorship | Property passes to surviving spouse automatically |
| Equal ownership | Each spouse owns 100% (undivided whole) |
| Creditor protection | Individual creditors cannot attach property |
| Mutual consent required | Both must agree to sell or encumber |
Five Unities Required
Tenancy by the entirety requires all five unities:
| Unity | Requirement |
|---|---|
| Time | Both acquire interest at same time |
| Title | Both acquire through same deed |
| Interest | Equal undivided interests |
| Possession | Equal right to possess whole property |
| Marriage | Must be legally married (the fifth unity) |
Comparison of Co-Ownership Forms
| Feature | Tenancy by Entirety | Joint Tenancy | Tenancy in Common |
|---|---|---|---|
| Survivorship | Yes | Yes | No |
| Equal shares required | Yes | Yes | No |
| Unilateral transfer | No | Yes (severs) | Yes |
| Creditor protection | Yes (individual) | No | No |
| Available to | Married couples only | Anyone | Anyone |
| Unities required | 5 | 4 | 1 (possession) |
Creditor Protection
| Creditor Type | Can Attach Property? |
|---|---|
| Individual spouse's creditor | No - cannot reach property |
| Joint creditors (both spouses) | Yes - can attach |
| IRS (federal tax liens) | Yes - can attach |
How Tenancy by Entirety Ends
| Event | Result |
|---|---|
| Death of spouse | Survivor owns entire property |
| Divorce | Converts to tenancy in common (usually) |
| Mutual agreement | Both agree to sell or convey |
| Joint creditor action | May force sale |
States Recognizing Tenancy by Entirety
Not all states recognize this form of ownership. Approximately 25 states and Washington D.C. recognize tenancy by the entirety for real property. Some states extend it to personal property as well.
Advantages and Disadvantages
| Advantages | Disadvantages |
|---|---|
| Automatic survivorship | Only for married couples |
| Avoids probate | Cannot sell without spouse |
| Creditor protection | Divorce complicates ownership |
| No gift tax between spouses | Not available in all states |
Creating Tenancy by Entirety
| Requirement | Details |
|---|---|
| Valid marriage | Legal marriage at acquisition |
| Clear language | Deed should specify "as tenants by the entirety" |
| State recognition | Must be recognized in that state |
| Simultaneous acquisition | Both must acquire at same time |
Exam Alert
Tenancy by the entirety = married couples ONLY + right of survivorship + creditor protection. Requires FIVE unities (time, title, interest, possession, MARRIAGE). Neither spouse can transfer or encumber without the other. Individual creditors CANNOT attach (but joint creditors can). Divorce typically converts to tenancy in common.
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Related Terms
Joint Tenancy
Real EstateJoint tenancy is a form of property co-ownership where two or more people hold equal, undivided interests with the right of survivorship, meaning when one owner dies, their share automatically passes to the surviving owner(s).
Tenancy in Common
Real EstateTenancy in common is a form of property co-ownership where two or more people hold undivided interests in the same property, with each owner able to sell or transfer their share independently and leave it to heirs.
Right of Survivorship
Real EstateRight of survivorship is a legal feature of joint tenancy and tenancy by the entirety that automatically transfers a deceased co-owner's interest to the surviving co-owner(s), bypassing probate.
Deed
Real EstateA deed is a legal document that transfers ownership (title) of real property from one party to another.