Also known as: tenancy by the entirety · tenancies by the entireties · tenancies by the entirety · entireties tenancy · tenancy by entireties
Written by attorneys — see sources below.
A form of concurrent ownership limited to married couples in which each spouse holds an undivided interest in the whole property with an indestructible right of survivorship. Title passes automatically to the surviving spouse by operation of law upon the death of the other spouse and cannot be devised by will. The estate protects the property from unilateral alienation or encumbrance by one spouse and from levy by that spouse's individual creditors.
Owen and Maria hold their farmhouse as tenants by the entirety. During divorce negotiations Owen executes a will leaving the farm to his nephew Leo. Owen dies while still married and before any decree or deed severs the estate. Maria takes full title by survivorship. Leo receives nothing under the will.
Vincent deeds a building to Pamela and Georgia, identified as husband and wife, together with the heirs of their bodies so long as the property remains a family-run eatery. The deed satisfies the statutory conditions for creating a tenancy by the entirety in the jurisdiction. One spouse cannot later force partition against the other's wishes.
Spouses Tyrone and Tabitha hold commercial real estate as tenants by the entirety and rent it to third parties, dividing gross receipts equally. Their separate businesses remain independent and they share no net profits from a common enterprise. The arrangement creates no partnership under the statute.
A state statute expressly recognizes tenancy by the entirety as an allowed concurrent estate. Mackenzie conveys a laboratory to Jackson and Spencer, husband and wife, and a designated class of their issue entering the pharmaceutical field. The deed creates a valid tenancy by the entirety under the governing rule.
Kokichi Endo conveys property held as tenants by the entirety to his wife to avoid personal creditors. The Sawadas obtain a judgment against Kokichi alone and attempt to set aside the transfer. The court refuses because one spouse's individual creditors cannot levy on entirety property.
On November 30, 1968, Masako Sawada and Helen Sawada were injured when struck by a motor vehicle operated by Kokichi Endo. On that date Kokichi Endo owned a parcel of real property in Wahiawa, Oahu, Hawaii, as a tenant by the entirety with his wife Ume Endo. On June 17, 1969, Helen Sawada filed her complaint for damages against Kokichi Endo. Masako Sawada filed her suit against him on August 13, 1969. The complaint and summons in each case was served on Kokichi Endo on October 29, 1969. By deed dated July 26, 1969, Kokichi Endo and Ume Endo conveyed the Wahiawa property to their sons Samuel H. Endo and Toru Endo. The deed was recorded in the Bureau of Conveyances on December 17, 1969. No consideration was paid by the grantees. Both sons were aware at the time of the conveyance that their father had been involved in an accident and that he carried no liability insurance. Kokichi Endo and Ume Endo continued to reside on the premises. On January 19, 1971, after a consolidated trial on the merits, judgment was entered in favor of Helen Sawada and against Kokichi Endo in the sum of $8,846.46. At the same time Masako Sawada was awarded judgment on her complaint in the amount of $16,199.28. Ume Endo died on January 29, 1971. After being frustrated in their attempts to obtain satisfaction of judgment from the personal property of Kokichi Endo, the Sawadas brought suit to set aside the conveyance. The trial court refused to set aside the conveyance, and the Sawadas appealed.
Spouses Alex and Jordan hold their home as tenants by the entirety. Divorce proceedings and a proposed property settlement are pending when Alex executes a will leaving the home to a third party. Alex dies while still married and before any final decree or deed severs the estate. Jordan takes full title by survivorship.
No. Filing for divorce or even obtaining court approval of a proposed property settlement does not sever the estate. The tenancy remains intact until a final divorce decree or a conveyance altering title occurs. Survivorship therefore still controls if one spouse dies before the decree.
Supporting sources
…Sawadas appeal. I The determinative question in this case is, whether the interest of one spouse in real property, held in tenancy by the entireties, is subject to levy and execution by his or her individual creditors. This issue is one of first impression in this jurisdiction. A brief review of the present state of the tenancy by the…
…does not change status of property held by tenancy by entirety); Bernatavicius v. Bernatavicius , 259 Mass. 486, 489 (1927) (“A
…of a spouse's interest in entireties property is typically not possible without severance. Unlike joint tenancies
…See, e.g., Fay , 201 Iowa at 1294, 207 N.W. at 370-71; see also 13 Iowa Practice: Probate § 13:111, at 741 (2006) (“In Iowa, tenancy by the entirety is not recognized.”). These are questions we need not decide because the deed executed by Roy did not express an intent for the joint
No. A will controls only probate property. Because each spouse holds an undivided interest in the whole with an indestructible right of survivorship, the interest of the first spouse to die is extinguished and passes automatically to the survivor outside probate.
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No. The Uniform Partnership Act expressly provides that joint tenancy, tenancy in common, or tenancy by the entireties does not by itself establish a partnership even when the co-owners share profits from the property.
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Only when the surviving spouse engaged in wrongful conduct such as fraud or when retention of the property would constitute unjust enrichment beyond the ordinary operation of survivorship. Absent such misconduct, equity will not circumvent the survivorship feature to honor a will or informal expectations.
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The conveyance must be made to two persons who are husband and wife and must also run in favor of their issue or a designated class of their issue. Both statutory conditions must be met for the estate to qualify as a tenancy by the entirety.
Supporting sources