In the third and final part of our series on Co-Ownership options we address Tenancy by Entirety
Tenancy by Entirety is the legal term for a form of Co-ownership that is reserved only for married couples in Massachusetts and certain other states. The designation “Tenancy by Entirety” essentially permits spouses to jointly own property as a single legal entity. Therefore each spouse has an equal and undivided interest in the property. Unlike joint tenancy or tenancy in common the tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant.
A Tenancy by Entirety creates a right of survivorship, so the death of a spouse would terminate the tenancy by entirety. When a tenant by the entirety dies, the surviving tenant immediately takes full ownership of the property. The right of survivorship prevents the property \from going into probate which is time consuming and costly.. However, in the case that both tenants die at the same time, the property usually will go to probate instead. Overall, a Tenancy by Entirety is distinct from the other tenancies as the property cannot be broken by the demand of one party alone.
How is this impacted by Divorce?
Divorce will automatically convert the tenancy by entirety to a tenancy in common. In general, an agreement between spouses to convert tenancy to a tenancy in common can be made. Both parties need to be in complete favor of selling or partitioning the property. Overall, a tenancy by entirety is distinct from the other tenancies as the property cannot be broken by the demand of one party alone.
What if one ,or even both spouses, write a Will that Differs from the Tenancy by Entirely previously Established?
Generally, the Tenancy by Entirety overrides the Last Will. However, there are exceptions. Where those exceptions apply, a court may deem the survivorship aspect as terminated. In this rare instance, it is in the interests of all parties to seek legal advice in determining the legitimacy of their concerns.
It is part of a lawyer’s job when representing a couple who are purchasing a home in MA to make them aware of this option. Unmarried couples in Massachusetts should refer to Joint Tenancy or Tenancy in Common resources on this site.
For people who are not married, holding title as often joint tenants serves the same purpose. While a survivor will need to deal with death tax liens, the property will not need to be part of the probate inventory.
Contact Tramontozzi Law Offices if you are considering purchasing a home or want to ensure that the deed to your property properly reflects how you INTEND to hold the property.
Call us at 781-665-0099 for an initial free consultation.