Married couples have a special way to own property jointly in some states, which has advantages over regular joint ownership. If you are married and own property jointly, you should make sure you have the right form of ownership.
Joint tenants must have equal ownership interests in the property. If one of the joint tenants dies, their interest immediately ceases to exist and the remaining joint tenant owns the entire property. The advantage of joint tenancy is that it avoids having an owner's interest probated upon death. The disadvantage is that creditors can attach one tenant's property to satisfy the other’s debt.
Some states give married couples another option to own property jointly and avoid probate but also have protection from creditors. This is known as tenancy by entirety.
What Is Tenancy by Entirety?
Tenancy by the entirety has the same right of survivorship as a joint tenancy, but one spouse can't sell their interest without the other spouse’s permission. The creditors of one spouse can't attach the property or force its sale to recover debts unless both spouses consent.
Creditors may place a lien on property held in tenancy by the entirety, but if the debtor dies before the other spouse, the other spouse takes ownership of the property free and clear of the debt. This is why if you have a tenancy by the entirety, both the husband and wife are required to sign the mortgage on their property for the mortgage to be valid.
Allows married couples to own property jointly
Permits a surviving spouse to avoid the probate process for the property
Available only in half of all states
Offers surviving spouse protection from creditors of deceased spouse
Selling the property, as well as any other decisions regarding the property, requires consent from both spouses
Property must go through probate once both spouses have died
Protects the property for the surviving spouse from claims from heirs of the deceased spouse
What Are the States With Tenancy by Entirety?
Tenancy by the entirety is available in half of all states and the District of Columbia. Some states recognize it for all property; other states only recognize it for real estate.
States with tenancy by the entirety are:
- New Jersey
- New York
- North Carolina
- Rhode Island
If you own joint property with a spouse in a state with tenancy by the entirety, you should check to make sure the property is owned as tenants by the entirety. In addition, unmarried couples who buy property and subsequently marry each other should check if they can re-title the deed as tenants by the entirety to avail themselves of the greater protections this form of tenancy offers.
Read more information about joint ownership.
For help reviewing or creating an estate plan, including proper ownership of assets, find an attorney near you.