Tenancy by the Entirety

Tenancy by the entirety is a form of co-ownership reserved primarily for married couples. It treats the married couple as a single legal entity that holds equal, undivided title to property and includes a right of survivorship: when one spouse dies, the survivor automatically owns the property in full.

Key takeaways

• Applies primarily to married couples (some states extend it to domestic partners or common-law spouses).
• Each spouse holds an equal, undivided interest — effectively 100% ownership together.
• Includes a right of survivorship, avoiding probate when one spouse dies.
• Protects property from creditors of one spouse but not from creditors of both spouses.
• Available in roughly half of U.S. states (25 states plus Washington, D.C.).

How it works

• Tenancy by the entirety typically arises when spouses acquire title together. In some jurisdictions it is presumed; in others it must be expressly stated.
• Neither spouse can sell, mortgage, or otherwise transfer the property without the other’s consent because each holds the entire interest jointly.
• A spouse’s unilateral will that tries to transfer an interest in the property is ineffective because survivorship rights supersede such provisions.

Requirements

• Parties must generally be married at the time title is taken. State law varies; a minority of states extend the concept to domestic partners or common-law marriages.
• Some states restrict tenancy by the entirety to real estate or to a primary residence (homestead).
• Whether the tenancy is automatic or requires specific language on the deed depends on jurisdiction.

Advantages

• Automatic survivorship: the surviving spouse becomes sole owner without probate.
• Protection from individual creditors: a creditor of only one spouse typically cannot attach or force sale of property held as tenancy by the entirety.
• Prevents unilateral sale or encumbrance by one spouse.

Disadvantages

• Not recognized in all states and may be limited to certain property types.
• Does not protect against creditors to whom both spouses are jointly liable.
• Requires mutual agreement for transactions; can complicate decisions if spouses disagree.
• When the surviving spouse later dies (or both die simultaneously), the property may still be subject to probate.

Tenancy by the Entirety vs. Joint Tenancy

• Similarity: both include a right of survivorship.
• Differences:
• Tenancy by the entirety is generally limited to married couples; joint tenancy may be used by any co-owners (friends, siblings, business partners).
• Joint tenants can end their interest unilaterally by transferring their share (creating tenancy in common). Tenancy by the entirety typically requires mutual agreement, divorce, death, or court action to terminate.

States that allow tenancy by the entirety

The following states and Washington, D.C., permit tenancy by the entirety in at least some form:
Alaska, Arkansas, Delaware, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Wyoming, and Washington, D.C.

Note: State-specific rules differ about which property types qualify and whether domestic partners or common-law spouses are included.

How tenancy by the entirety can end

• Mutual agreement by the spouses.
• Death of one spouse (survivorship transfers title to the survivor).
• Divorce — tenancy by the entirety typically converts to tenancy in common or is otherwise resolved by court order (sale, division, or award to one party).
• Sale of the property by agreement of both spouses.
• Court action (e.g., partition or creditor remedies in some circumstances).

Rights of tenants by the entirety

• Each spouse has full use and possession of the property.
• One spouse cannot mortgage, sell, or encumber the property without the other’s consent.
• Creditors of only one spouse generally cannot attach the property; creditors of both spouses may reach it.

Common questions

What happens on divorce?
* The tenancy usually converts to tenancy in common or is otherwise divided; courts can order a sale or award ownership consistent with divorce proceedings.

Does it protect against all creditor claims?
* No. It protects against creditors of one spouse only. Joint debts or judgments against both spouses can still be enforced against the property.

Is tenancy by the entirety a substitute for estate planning?
* It provides survivorship and avoids probate for the first death, but it is not a complete estate plan. The surviving spouse’s later estate may still require probate, and other estate-planning tools may be needed for different goals.

Bottom line

Tenancy by the entirety is a powerful ownership form for married couples in jurisdictions that recognize it: it grants survivorship rights, prevents one spouse from unilaterally transferring property, and shields the property from claims by creditors of one spouse. Its availability and specific rules vary widely by state, so couples should confirm local law and consider how tenancy by the entirety fits into their broader estate and asset-protection planning.