law now affords marital couples additional protection in the ownership of their
homes. This law permits the creation of
an ownership right in property called "tenancy by the entirety."
To create such an interest, homeowners must
record a deed designating that the grantees are husband and wife and desire to
hold the property as tenants by the entirety.
This ownership interest can be created only for the homestead property
of the married couple. A homestead is
the permanent residence of the couple and does not include investment or
commercial property or a second home, such as a vacation cottage.
Tenancy by the entirety has the same
survivorship rights as joint tenancy, meaning that upon the death of one
spouse, the surviving spouse immediately takes title to the entire
property.This is in contrast to a
tenancy in common situation where, upon the death of one spouse, the surviving
spouse owns one-half of the property and the heirs or devisees (persons who
inherit real estate under a Will) of the deceased spouse own the other
One of the major benefits of
property held as tenants by the entirety is that the property cannot be sold to
satisfy a judgment lien against only one of the spouses. For example, if a creditor obtained a
judgment against the husband only, the creditor could not sell the property to
satisfy that debt. The judgment must be
against both the husband and the wife.
On the other hand, where a husband and wife own property either as joint
tenants or tenants in common, a creditor can force the sale of the property even if the
judgment is against only one of the spouses.
However, this protection against the forced sale for a judgment against
only one spouse does not apply to a tax obligation of one of the spouses that
is owed to any unit of government.
Furthermore, no deed,
contract for deed, mortgage or lease of homestead property held in tenancy by
the entirety is effective unless signed by both spouses. Tenancy by the entirety also automatically ceases
upon a Judgment For Dissolution of Marriage.
Ownership of real estate under tenancy by the entirety affords unique
protection to the homestead of married couples.
Every married couple should consider whether to take advantage of
the protection afforded by this type of ownership.
We can assist you by preparing the necessary documents to achieve
this and seeing that the documents are properly recorded.
Please contact us to discuss whether this
new method of ownership or lower housing costs through refinancing may be of
benefit to you. We will be happy to
answer any questions that you may have.