(7) Tenancy by the Entirety

What is a tenancy by the entirety?

A form of concurrent ownership between a husband and wife that is similar to a joint tenancy and includes a right of survivorship.

Who may create a tenancy by the entirety?

Only a husband and wife.

What is the key characteristic of a tenancy by the entirety?

The right of survivorship.

What happens when one spouse dies in a tenancy by the entirety?

The surviving spouse automatically takes the entire property.

What four unities are required for a tenancy by the entirety?

Possession, Interest, Title, and Time (PITT).

Does a tenancy by the entirety require the same four unities as a joint tenancy?

Yes.

May one spouse unilaterally terminate a tenancy by the entirety?

No.

Why can't one spouse unilaterally sever a tenancy by the entirety?

Because both spouses are treated as owning the property together as a single legal unit.

Who must be the co-tenants in a tenancy by the entirety?

A husband and wife.

What did the common law presume when property was conveyed to married persons?

Tenancy by the entirety.

What does modern law generally presume when property is conveyed to married persons?

Tenancy in common unless the conveyance expressly creates a tenancy by the entirety.

What events may sever a tenancy by the entirety?

Divorce, death, mutual agreement, or execution by a joint creditor.

How does divorce affect a tenancy by the entirety?

It severs the tenancy by the entirety.

How does the death of one spouse affect a tenancy by the entirety?

The surviving spouse automatically becomes the sole owner through the right of survivorship.

May spouses mutually agree to terminate a tenancy by the entirety?

Yes.

May a joint creditor execute against property held in tenancy by the entirety?

Yes.

May one spouse acting alone convey or encumber the entire property held in tenancy by the entirety?

No.

Why is tenancy by the entirety often considered stronger than a joint tenancy?

Because one spouse cannot unilaterally sever or terminate the estate.

Testable Issue: Who may hold property as tenants by the entirety?

Only a husband and wife.

Testable Issue: What four unities are required for a tenancy by the entirety?

Possession, Interest, Title, and Time (PITT).

Testable Issue: May one spouse unilaterally sever a tenancy by the entirety?

No.

Testable Issue: What events terminate a tenancy by the entirety?

Divorce, death, mutual agreement, or execution by a joint creditor.

Testable Issue: What is the difference between the common-law and modern presumptions for conveyances to married persons?

Common law presumed tenancy by the entirety, while modern law generally presumes tenancy in common unless otherwise expressed.

Essay Rule: How should you analyze a tenancy by the entirety?

Determine whether the parties are husband and wife, verify the existence of the four unities and the right of survivorship, determine whether any recognized event severed the tenancy, and remember that unilateral action by one spouse is generally ineffective.

Master Synthesis: What is the defining characteristic of a tenancy by the entirety?

It is a marital form of concurrent ownership requiring the four unities and a right of survivorship, with the added protection that one spouse generally cannot unilaterally sever the estate.