With today being Valentine’s Day and one of the most popular days to get engaged or married, we thought it would be appropriate to discuss the importance of making sure married couples own their property as tenants by the entirety.
In today’s society, a lot of couples are purchasing a home together before they get married. Some couples take title as tenants in common and others take title as joint tenants with the right of survivorship. As tenants in common, they each own a respective interest in the property and the interests do not need to be equal. If one dies, their respective interest passes under the Will if they die testate. If they did intestate, it passes under the intestate statue. In contrast, if they take title as joint tenants with the right of survivorship, they have to take equal interest so they each would own 50%. If one dies, their interest passes by operation of law to the surviving joint tenant. If love is no longer in the air and they want to sever their joint tenancy, they can convey the property to themselves as tenants in common. In fact, even if one party decides he or she no longer wants to own the property as joint tenants with the other, he or she can convey the property to himself or herself which would sever the joint tenancy and they would then own the property as tenants in common.
So let’s say cupid strikes and you get engaged today. With the real estate market heating up, you both decide to buy a house together in 2014 and get married on Valentine’s Day next year. Being cautious about your relationship, you purchase the property as boyfriend and girlfriend, as tenants in common. Next Valentine’s Day, you tie the knot and become husband and wife, but don’t change your deed to take title as husband and wife. Unfortunately, married life has taken its toll on the husband and the husband dies without a will, survived by his newly beloved wife and husband’s two adult children from a prior marriage. Wife goes to sell the property and finds out her husband’s estate has to be probated since he owned 50% and she owned 50% as tenants in common. Under the intestate statute, wife gets a life estate and husband’s two adult children get a remainder interest unless wife takes an election under the probate statute to own it as tenants in common with her husband’s children. Unfortunately, this all could have been avoided if upon getting married they had deeded the property from themselves to themselves as husband and wife, creating a tenancy by the entirety.
If the lovebirds had taken title as joint tenants with the right of survivorship, husband’s interest would have passed by operation of law to wife as the surviving joint tenant. But don’t be fooled, upon getting married, you still need to change your deed from joint tenants with right of survivorship to tenancy by the entirety. The reason is because a judgment against one spouse attaches to that spouse’s interest (unless it is homestead property) in a joint tenancy. However, it does not, for the most part, under a tenancy by the entirety.
The moral of the story is don’t forget to consult with a real estate attorney after you get married to change ownership of your property to a tenancy by the entirety. Happy Valentine’s Day!
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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