What is a Tenant by the Entirety?

A tenancy by entirety is a phrase that means real estate is owned by a married couple and if one spouse dies, then 100% of title to the property automatically vest in the surviving spouse’s name. This is a very important and simple tool for estate planning purposes because it avoids the necessity of probate when one spouse dies. That is, of course, if you wish for the land to pass to your surviving spouse. The other common way to title property is as tenant in common which was addressed here.

How to Create a Tenancy by the Entirety

To create a tenancy by the entirety the persons listed as the owners on the deed must be married at the time the deed is made and they must demonstrate an intent to hold the property as tenants by the entirety. This can be achieved by titling the property to “Jane Doe and husband, John Doe” or similarly by titling the property to “Jane and John Doe, Wife and Husband” or some similar language. If you do not specifically state that the persons on the deed are married then you open the deed up to interpretation as to whether or not a tenancy by the entirety was created.

What Happens when Spouses Do Not Deed Property This Way?

A husband and wife that own property together and do not demonstrate an intent to establish a tenancy by the entirety will own the property as joint tenants in common. That means that if one spouse dies, then his/her interest in the property will pass according to the deceased person’s last will and testament if one exists, or according to the laws of the State if no will exists. Unfortunately, even if the last will and testament names the surviving spouse, it may require going to probate court to get the title changed. This can cost time and money that could easily be avoided by properly titling the property correctly in the first place.

If you already own property in your sole name and you decide to create a tenancy by the entirety with your spouse, then all that needs to be done is have a new deed prepared naming both spouses’ as owners. Is your property titled properly so your spouse can avoid probate court?