Tenants by the Entirety in a Divorce

By Louis Kroeck

Tenancy by the entirety is a legal doctrine allowing for a specific form of marital property ownership. The legal doctrine is not recognized in all states and there are many other options when it comes to determining how to assign marital property. There are several ways to end a tenancy by the entirety arrangement, including divorce.

Understanding Tenancy by the Entirety

In a tenancy by the entirety, a husband and wife own some form of property, usually real estate, with both individuals having ownership rights in an undivided whole of the property. This means that both parties have complete ownership of the property concurrently. Tenancy by the entirety is coupled with a right of survivorship, meaning the surviving spouse will own the property outright after the other spouse passes away.

Forming a Tenancy by the Entirety

To form a tenancy by the entirety, the parties must be married, the husband and wife must acquire the property at the same time, title to the property must be granted by the same instrument, the husband and wife must have identical interests in the property and both parties must have equal rights to possession of the property. In some jurisdictions it is required that the instrument conveying the property state, "as tenants by the entirety."

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Because marriage is an essential element in forming a tenancy by the entirety, a divorced couple cannot be tenants by the entirety; divorce nullifies any tenancy by the entirety arrangement. The terms of a divorce settlement will dictate what happens to the property following the divorce. A divorced couple may remain joint tenants of the property or the property can be sold or otherwise partitioned. In a joint tenancy, if one joint tenant decides to convey her interest in the property, that interest is conveyed, and the joint tenancy is destroyed.

Other Methods of Termination

In addition to divorce, a tenancy by the entirety may be ended by way of mutual agreement, through joint conveyance, or by death. In some states, a tenancy by the entirety will become a joint tenancy if the married couple decides to break the agreement. Any agreement to end a tenancy by the entirety requires the consent of both spouses.

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