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What is Tenancy by the Entirety?

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  • Written By: Tricia Ellis-Christensen
  • Edited By: O. Wallace
  • Last Modified Date: 27 November 2016
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Tenancy by the entirety is a method of joint ownership permitted between spouses or, in some cases, legally registered domestic partners. In the US, not all states in the US recognize this type of ownership, but some still do, which can make passage of property from a spouse who dies to the surviving spouse much easier. This can also help shield one spouse from the debts of the other, and in this form of ownership, especially if divorce occurs, this may not affect how the property is owned or the right of one spouse to opt out or demand that certain things be done with the property unless both spouses agree to give up tenancy by the entirety.

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Jointly held property by spouses is not necessarily tenancy by the entirety. In order for the property to be considered as such, it has to be specifically stated as such. In this case, both spouses are treated as a single entity or property owner, so that the death of one spouse means that tenancy is completely transferred to the other, without having to wait for probate. Another advantage of this method for holding property may be if one member of a couple has debts contracted outside the marriage or before marriage took place. In these cases, this type of ownership means that any debts can’t touch the jointly held property. Of course, debts contracted within a marriage may be the responsibility of both members of the couple, and claiming tenancy by the entirety won’t protect the property from being seized.

There can be some disadvantages to this method of joint ownership. If a spouse with a large accumulation of personal debt inherits property through tenancy by the entirety, all that property may be subject to debt collection. It’s not always a good thing to choose this option if one member of the marriage has pre-existing personal debt, particularly if it is likely that the non-indebted spouse won’t outlive the indebted spouse. Instead, other methods for protecting property might be to grant use but not ownership of property as through certain trust agreements.

If you are considering this type of tenancy agreement you should consult a good attorney, one skilled in laws regarding property and inheritance in your particular part of the country. Since not all states recognize this form of tenancy, a good attorney can offer other solutions that might help shield a surviving partner from a deceased partner’s debt. Alternately, a lawyer may be able to suggest methods by which property can change hands from spouse to spouse upon a spouse’s death without much legal “to do.”

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sweetypie973
Post 5

If a mother dies, leaving a paid-for home to her daughter as the beneficiary, and the daughter signs for the home with a warranty deed and rights to survivorship to her brother and he dies and has rights to survivorship also on the deed he received, does the home go back to his sister, does his only child get the home or does the home go to intestate probate to be sold?

I think the home should go to his child since it was given to him and basically the sister passed it from his mother.

gw3456
Post 4

Does any one know if oregon fully recognizes tenants by entirety and if there are any loopholes in it? thanks.

anon40323
Post 2

That's my property title with my ex....unfortunately he died suddenly. New wife lives in the house. What are my rights?

wolfwmn
Post 1

My brother-in-law owns real estate in NYS in the names of him and his late wife as tenants by the entirety. He has two adult children by his late wife. What happens to his real estate if he should predecease his current wife, my sister. Will it automatically go to her his his current wife? Will his estate have to go through probation for her to get the property? Will it be divided between his current wife and his children and she have to buy out their share of the real estate?

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