Duhaime's Law Dictionary


Tenancy By The Entireties Definition:

A form of common law co-ownership where, when real property was transferred to a husband and a wife, the property could not be seized or sold unless both spouses agreed or by ending the marriage.

Related Terms: Per Tout Et Non My, Joint Tenancy, Fee Tail, Co-ownership, Tenants In Common

Also known as a tenancy by the entirety, such a form of shared or co-ownership is a concurrent estates.

The husband and wife were seen by the common law as a single legal entity and thus they owned real property together in a unique form of co-ownerhsip known as tenancy by the entirety.

Many (but not all) jurisdictions recognize tenancies by the entirety. Some jurisdictions assume that any conveyance to a married couple conveys as tenants in the entirety; other jurisdictions require that such a state of owership be explicitly provided for in the sale documents.

The survivor in the event of the death of one or the other of the husband or wife owning as tenants by the entirety, becomes the sole owner of the property - thus, a right of survivorship similar to joint tenants.

In many jurisdiction that sustain this form of co-ownership, the tenancy of the entirety shields husbands and wives from the creditors of the other.

A tenancy in the entirety was vulnerable only to the agreement of the husband and wife to end the tenancy by the entirerty, or the end of the marriage by death or divorce. It formed a very effective shield for the family against creditors of one spouse who would be unable to seize or force the judicial forced sale of the property so-held.

In her 1980 article, Jane Glenn describes tenancy by the entirety as having an additional unity; unity of person:

"This unity (of the person) was so complete that neither spouse was regarded as having even a potential share in the property. Both were seised together as one individual of the whole; that is, of the entirety. They were, in other words, together tenants of the entirety. From this flows one of the most important features of a tenancy by the entireties: its unseverability.

"In contrast, each joint tenant has a potential share with which he or she may deal independently, thereby severing the joint tenancy and converting it into a tenancy in common."

REFERENCES:

  • Glenn, Jane, Tenancy by the Entireties: A Matroninial Regime Ignored, 58 Can. Bar Rev. 711 (1980)

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