The tenancy by the entirety can only be created in a husband and wife. At common law, and still today, the wife and husband are considered one unit; hence the term entirety.
Examples Creating a Valid Tenancy By The Entirety.
Grantees: Bill Smith and Mary Smith, husband and wife.
Grantees: Bill Smith and Mary Smith, his wife.
Grantees: Bill Smith and Mary Smith, as tenants by the entirety.
Grantees: Mary Smith and Bill Smith, her husband.
There are no magic words necessary to create a tenancy by the entirety. The only requirement is for the conveyance to properly indicate the married status of the grantees therein.
The tenancy by the entirety, the joint tenancy, and the joint tenancy with full rights of survivorship all offer the element off survivorship. However, the big difference between the tenancy by the entirety and the joint tenancy estates is that of severance. Joint tenancy estates may be severed by the conveyance of a co-owner to a third-party. Conversely, a tenancy by the entirety cannot be severed by the unilateral action of only one spouse attempting to convey to a third-party. A discussion of severability follows.
Severance of the Tenancy By The Entirety.
Example: Blackacre is owned by Bill Smith and Mary Smith, husband and wife.
Subsequently, Mary Smith attempts to deed her interest to Dave Phillips, a third-party. This conveyance would be invalid. Mary cannot unilaterally sever the tenancy by the entirety. For Dave Phillips to acquire legal ownership, Bill Smith and Mary Smith, as husband and wife, would have to convey.
*There is one exception to this rule: one spouse, acting alone, may convey its interest to the other spouse, thereby destroying the tenancy by the entirety. In fact, this is a very common occurrence.
Example: Blackacre is owned by Bill Smith and Mary Smith, husband and wife. Subsequently, Mary Smith deeds her interest to Bill Smith.
Resulting State of Title: Bill Smith.
Either spouse may freely convey its interest to the other.
Death of a spouse severs the tenancy by the entirety. When a spouse dies, the remaining spouse survives to the interest of the decedent. View the following example.
Original State of Title: Mark Thompson and Marge Thompson, husband and wife. Subsequently, Mark Thompson dies.
Resulting State of Title: Marge Thompson, survivor of herself and her deceased husband, Mark Thompson.
You may be wondering how someone can survive themselves. Remember that with a tenancy by the entirety, the spouses are considered to be one unit owning the whole. This verbiage simply indicates a continuation of the whole by the surviving spouse. The surviving spouse will then hold title in fee simple absolute.
The tenancy by the entirety is not a complicated estate. Whether the transaction is a sale or finance transaction, both spouses must act in concert. Unilateral action of one spouse is invalid.
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