When two people marry, they also join forces in life, typically pooling finances, raising a family together, and co-owning properties. Tenants by entirety is a method under which married spouses can own the title to a residence in certain states. However, to change one partner’s interest in the property in any way, both spouses must provide their full consent. It also stipulates that if one of the partners dies, the surviving partner will obtain full ownership of the property. My aim is to discuss tenants by the entirety in such states as Maryland, Illinois, and Florida. So, if you’re residing in any of these states with your spouse, then this post is for you.
Let’s set the ball rolling…
Overview
Sharing property as a couple is considered a shared investment under US law. This means the couple can be a single investor. Thus, each member of the pair has equal ownership rights to real land, referred to as renters. This sort of shared property ownership is only available to married couples. It signifies that each member of a marriage owns the full property, not just a piece. This type of ownership is applicable not only to real estate but also to personal assets (tangible and intangible).
Even joint bank accounts, for example, are also tenants by the entirety. The exception is unless the couple specifies in writing that they are not.
One of the main advantages of tenants by entirety is that the surviving spouse gets immediate survivorship rights. So, if one partner dies, the surviving spouse obtains the property.
If you own property with your spouse, one of your options is for titling your home as tenants by the entirety. In fact, unless the deed expressly states otherwise, the state will presume that you are holding your property as tenants by the entirety
Tenants by Entirety Explained
Tenants by the entirety is a mechanism for married couples to have an equal interest in a property as well as survivorship rights, avoiding probate. It’s not a 50/50 share, rather each spouse owns 100 percent of the property in TBE.
Furthermore, any title-holding has an impact on each owner’s ability to sell and utilize the property as collateral. What happens to the property when one partner dies is also a result of the ownership arrangement. It addresses whether or not to pay off a debt or satisfy a judgment using the property.
Common tenancy and joint tenancy are two other options for spouses who want to own property together. A husband, for example, may not agree to sell his ownership interest in a vacation property shared with his wife unless his wife consents.
Property owned entirely by married couples is akin to community property. Instead of having sole ownership of a sector of the property, all partners enjoy joint management of the entire property. The tenants’ rights will take precedence over any provisions in a will or trust that may otherwise pass the property to heirs following the death of one of the spouses.
A dead person’s will may direct that a piece of property should go to a living child. Unless the property is jointly owned by the decedent’s spouse and comes under the tenants by entirety agreement, the will’s terms are ignored. The property would solely belong to the spouse who is alive.
Tenants by the entirety are available in roughly half of all states, as well as the District of Columbia. Maryland, Florida, and Illinois are among the states that recognize tenants by the entirety as a type of property ownership.
Tenants by Entirety in Maryland
As explained above, TBE is a sort of joint tenancy that gives married couples additional protections. In other words, it is limited to married couples only while they are still married. Tenants by the entirety include all of the advantages of joint tenancy, such as a right of survivorship, as well as additional creditor protection. Only creditors of a married couple’s joint debts have access to such property. Except under the federal tax lien statute, the property may not be sold to satisfy either spouse’s individual debts. Neither spouse can sell their half-interest without the other’s permission.
To achieve tenants by entirety in Maryland, you need to be married. There is a presumption in Maryland that property belonging to a husband and wife is held as tenants by the entirety, even if it is not specified. In Maryland, spouses who execute a deed to a property stand to gain the title as tenants by the entirety unless the instrument specifies otherwise. However, if two joint tenants marry, their ownership does not instantly become a Tenancy. As a result, they need to make changes regarding their initial deed.
Nevertheless, when a court issues an absolute divorce, the tenants by entirety become obsolete by operation of law in Maryland, and their co-ownership turns to a Tenancy in Common, thus ending the right of survivorship.
Tenants by Entirety in Florida
Apart from Maryland, Florida is among the 25 states that recognize the rights of tenants by entirety. Florida is one of only a few states that allow married couples to hold residential property as tenants by entirety, although the protections that this status afforded residential property owners have dwindled in recent years. Nonetheless, it is still a viable option for titling your home, and it provides all of the benefits of joint tenancy with the added benefit of greater protection against creditors.
According to the Florida Supreme Court, there is a presumption that any real or personal property owned jointly by a husband and wife is owned as tenants by the entirety. Aside from this presumption, the property must meet the following criteria in order to qualify as a tenant by the entirety in Florida:
- Unity of Possession refers to joint ownership and control.
- The couple must have been married at the time the property was acquired, which refers to Unity of Marriage.
- Also, the couple must have a corresponding and equal interest in the property, which refers to Unity of Interest.
- The interest in the property must have its inception at the same time, which refers to Unity of Time.
- The interest in the property must have its inception in the same manner, which is known as Unity of Title; and upon the death of either spouse, the surviving spouse will obtain entire ownership.
When you try to do everything on your own, title law can become complicated. You do not need to waste time or money dealing with uncertainty; instead, seek advice from an experienced lawyer in Florida today to be more aware.
Tenants by Entirety in Illinois
If you live in Illinois, it is important to understand what it means to have title to your home in the form of tenants by the entirety. In Illinois, tenants by the entirety is a way for couples to protect their homesteads from creditors while also ensuring a smooth estate transition during a difficult time.
To create tenants by the entirety in Illinois, particular words must be in place, according to the presumption. In Illinois, the deed language must state that the parties are together and include particular words to establish tenancy by the entirety. For example, to form a tenancy by the entirety between Chloe and Clark Sullivan, the following language is the right one: “to Chloe Sullivan and Clark Sullivan, husband and wife, not as tenants in common nor as joint tenants with rights of survivorship but as tenants by the whole.”
As previously noted, a tenancy by the entirety may end by mutual agreement of the tenants. It can also end with a court-ordered sale to satisfy a joint obligation owed by the husband and wife, a divorce, or the death of either the husband or the wife.
Finally, in many places, a husband and wife who take title jointly automatically gain title to their home as tenants by the entirety; however, Illinois is not one of those states. The previously mentioned language must be in place in order for a tenancy by the entirety to be effective in Illinois.
Benefits of Tenants of Entirety
Under the United States law, holding property as tenants by the entirety has three significant advantages:
#1. Avoiding Probate
When the first spouse dies, property owned as tenancy by the entirety automatically goes to the surviving spouse. There is no need to deal with the property throughout the probate process. For further information, see Using Deeds to Avoid Probate of Real Estate in Florida.
#2. Spousal Protection
To transfer real estate held in tenancy by the totality, both spouses must sign the deed. A sale contract or deed signed by only one spouse is null and void. Similarly, both spouses must mortgage or otherwise pledge tenancy over the entire real estate as security. These guidelines safeguard couples by guaranteeing that no changes take effect with regard to the property without their permission.
#3. Creditor Protection
Property held as tenants by the entirety is inaccessible to creditors who acquire a judgment against one spouse. Property acquired under tenancy by the entirety is protected if one spouse receives a legal judgment. Creditors cannot use property held under tenancy by the entirety to fulfill a judgment against one spouse.
Because of these advantages, tenancy by the entirety is the most common form of co-ownership of Florida real estate by a married couple.
What Are the Drawbacks of the Whole Tenancy?
Tenancy by the entirety is a significant drawback when it comes to estate planning because it ensures probate after the passing of the second spouse. The creation of a trust and the transfer of the property to the trust is necessary for avoiding probate.
Why Is Ownership by Renters by the Entirety Beneficial?
Limited asset protection is offered by tenancy in its entirety. The property cannot be used as collateral to pay off a debt. It stops one partner from selling their share of the house to a third party or putting a lien on it. Additionally, it grants couples the right to survivorship.
What Kind of Ownership Structure Is Ideal?
The optimal initial ownership structure for many new firms is either a single proprietorship or — if there are many owners engaged — a partnership. In contrast to an LLC or corporation, a sole proprietorship is a one-person firm that is not registered with the state.
Conclusion
In conclusion, the basic premise of tenants by the entirety is that the married couple owns the residential property as a single unit rather than as two individuals. This has several ramifications. For starters, if one of the spouses dies, the other will inherit the property without having to go through probate. Again, both spouses must agree to sell the property together if they want to do so. The main advantages of tenants in their entirety are essentially the same as those of joint tenancy.
The main distinction between the two is the additional protection provided by tenancy by the entirety against creditors. If one spouse has debt problems, defaults on a loan, etc., creditors cannot come after the house because it belongs to both spouses as a unit, not by the single spouse.
Frequently Asked Questions
What is the main purpose of tenants by entirety?
Tenants by the entirety is a legal structure that allows married partners to have an equal interest in a property as well as survivorship rights, which keeps their property out of probate.
Which states have tenants by the entirety in the US?
Florida, New Jersey, Ohio, New York, Michigan, Maryland, Massachusetts, Hawaii, Indiana, Kentucky, Delaware, Arkansas, Alaska, Illinois, Missouri, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Wyoming, Vermont, and Virginia are among the states that recognize tenants by the entirety type of ownership.
What happens to tenants by the entirety after death?
When a spouse dies, the surviving spouse immediately inherits the property. This is the right of survivorship. It keeps the property from going through probate. However, if both spouses die at the same time, the property will normally go through probate instead.
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