The tenancy by the entirety is a unique estate that may be
held only by a married couple or, in New Jersey as of February 19, 2007, civil
union partners. (For simplicity’s sake,
we’ll include civil union partners as a married couple in the below discussion.)
According to our colleague and noted title professional
Lawrence Fineberg, Esq. “Its origin is said to be biblical in nature. At common law, consistent with the biblical
statement quoted below, a husband and wife were viewed as a single entity. Although
this is no longer the case, some of the incidents of tenancy by the entirety are
vestigial remnants of this conception.” (Citations omitted.)
Unlike other forms of co-tenancy, a tenancy by the entirety
may have only two co-tenants, who are married to each other.
A deed or a testamentary devise to a married couple is
presumed to create a tenancy by the entirety, in the absence of contrary
wording in the deed or will. So, a deed from a spouse conveying the real estate
owned in her name to herself and her spouse, vests title in them as tenants by
the entirety.
What if the couple is not in fact married at the time of the
deed? In that situation, they will hold as tenants in common, even if they eventually
marry. Likewise, say an engaged couple takes title to a home as tenants in
common or as joint tenants, a tenancy by the entirety is not automatically created
by their subsequent marriage. So, if
they wish to hold title as tenants by the entirety, a new deed must be created
which vests title in them as such.
But, if the parties are in fact married to each other at the
time of the deed, a tenancy by the entirety will be created (in the absence of
contrary language), even if their marital status is not recited in the deed.
In New Jersey, as mentioned above, civil union partners are
also presumed to acquire title as tenants by the entirety. However, domestic
partners may not do so.
Where title to realty is held by spouses married to each
other as tenants by the entirety, the death of one spouse results in the
vesting of the entire interest in the survivor automatically.
The entry of a judgment of divorce automatically destroys
the tenancy by the entirety, so that former spouses hold title as tenants in
common.
A tenancy by the entirety may not be terminated by the
unilateral act of either spouse, If one
spouse attempts to convey to a stranger, however, the grantee succeeds to the
interest of the grantor-spouse, including that spouse’s right of survivorship. The
same result is reached where a judgment creditor or foreclosing mortgagee of
only one spouse attempts to enforce its lien against property held by the
entirety.
Portions of the above have been adapted from Fineberg, N.J.
Title Practice (NJLTI, 5th Ed. 2021).
Disclaimer: The information included is designed for informational
purposes only. It is not legal, tax, financial or any other sort of advice, nor
is it a substitute for such advice. The information may not apply to your
specific situation. We have tried to make sure the information is accurate, but
it could be outdated or even inaccurate in parts. It is the reader’s
responsibility to comply with any applicable local, state, or federal
regulations. Vested Land Services LLC and their employees make no warranties
about the information nor guarantee of results, and they assume no liability in
connection with the information provided.
For your real estate purchase or mortgage refinance or
if you have questions about what you see here, contact
Stephen M. Flatow, Esq.
Vested Land Services LLC
165 Passaic Avenue, Suite 101
Fairfield, NJ 07004
Tel 973-808-6130 - Fax 973-227-0645
E-mail sflatow@vested.com
@vestedland
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