What is Tenancy by the Entirety?

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.

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.”