Tenancy by the Entirety

Tenancy by the entirety is a special form of concurrent ownership available only to married couples (and, in some jurisdictions, domestic partners or civil union partners). It is based on the common-law fiction that husband and wife are a single legal unit, and therefore each spouse is considered to own the entire estate rather than an undivided share. This form of ownership carries the right of survivorship, meaning that when one spouse dies, the surviving spouse automatically takes the entire property.

Tenancy by the entirety differs from joint tenancy in several important respects. First, it cannot be severed unilaterally -- neither spouse can convey, mortgage, or encumber the property without the other's consent. Second, the property is generally immune from the individual creditors of either spouse; only creditors of both spouses jointly can reach property held in tenancy by the entirety. This creditor protection is one of the primary practical advantages of this form of ownership and a significant reason couples choose it. Third, the tenancy can only be terminated by mutual agreement, divorce, or death.

Not all states recognize tenancy by the entirety. Those that do typically presume that a conveyance to a married couple creates a tenancy by the entirety unless the deed specifies otherwise. In states that do not recognize this form of ownership, a conveyance to a married couple typically creates either a joint tenancy or a tenancy in common depending on the language used. Upon divorce, a tenancy by the entirety is automatically converted to a tenancy in common in most jurisdictions, as the marital unity that is the foundation of the estate no longer exists.