Can Tenancies by the Entirety Go to Probate if a Spouse Dies?

By Andrine Redsteer

Some types of property are referred to as non-probate property, meaning they bypass probate entirely. The most common reason for property to bypass the probate process is it automatically becomes the property of a designated individual after the decedent's death. Non-probate property includes life insurance proceeds, payable-on-death accounts, joint tenancies with right of survivorship and tenancies by the entirety.


Probate proceedings serve to distribute property, among other things. During probate proceedings, property is distributed according to a decedent's last will and testament or according to a state's laws of intestate succession if the decedent failed to make a will. Because testators cannot leave their interests in a tenancy by the entirety to someone in a will -- nor does an interest in a tenancy by the entirety pass to someone via laws of intestate succession -- a tenancy by the entirety does not go through probate.

Tenancy by the Entirety

Only married couples are allowed to own a tenancy by the entirety. In a tenancy by the entirety, a married couple owns a piece of property as one legal entity. Each spouse owns a 100 percent share and has the right to possess the entire property. Neither spouse is permitted to unilaterally convey any interest in the tenancy by the entirety to someone else.

Protect your loved ones. Start My Estate Plan


In a tenancy by the entirety, when one spouse dies, his share passes to his surviving spouse. Because of the nature of the interests in a tenancy by the entirety -- namely, that they pass to a surviving spouse by operation of law -- these interests do not go through the probate process. Once a spouse dies, the title to the tenancy by the entirety vests completely in the surviving spouse.

Termination of Tenancy by the Entirety

Once a spouse dies and his share passes to his surviving spouse, the tenancy is terminated. However, these tenancies may be terminated during both spouses' lifetimes in the event of divorce or if both spouses agree to termination.

Protect your loved ones. Start My Estate Plan
Meaning of the Legal Term "Rights of Survivorship"


Related articles

Probate Vs. Non-Probate Assets in Ohio

In Ohio, as in other states, certain assets are classified as probate or non-probate property. Non-probate assets are said to pass outside of probate; this means they automatically pass to a joint owner or beneficiary without going through probate administration. Probate assets are subject to probate administration, regardless of whether the deceased, known as the decedent, left a will, known as dying "testate," or didn't leave a will, known as dying "intestate."

Difference Between Community Property With Rights of Survivorship Vs. Joint Tenancy

Property held as a joint tenancy and property held as community property with rights of survivorship have many similar characteristics. When a married couple owns property as a joint tenancy or as community property with rights of survivorship, the spouse who outlives the other automatically receives the deceased spouse's property interest. However, the two types of ownership differ regarding how each is taxed upon the death of a spouse.

Do You Have to Partition Undivided Property in a Will?

Partitioning is a judicial process that divides co-owned real estate among its owners. A will can transfer the decedent’s share of co-owned property or it may establish that certain real estate is to be co-owned by certain beneficiaries. In all of these cases, partitioning the property is generally not required. If there is a conflict among the owners about the property's use, however, or if one owner wants unrestricted ownership over a portion of the real estate, the owners may choose to partition the property.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Nebraska Divorce & Joint Tenancy Laws

In a joint tenancy, multiple owners hold property at the same time. In some states, a joint tenancy between a husband ...

Ohio Probate Law Concerning Property Deeds in Multiple Names With No Rights to Survivorship

Frequently, an estate or inheritance involves multiple heirs. If a last will and testament exists, even it may not ...

South Carolina Estate Laws

All of the property a person acquires during his life is collectively called an estate. When that person dies, the ...

Tenants by the Entirety in a Divorce

Tenancy by the entirety is a legal doctrine allowing for a specific form of marital property ownership. The legal ...

Browse by category
Ready to Begin? GET STARTED