Tenancy By The Entirety





A tenancy by the entirety ("TBE") is a unique form of legal ownership of property that comes to us from old English common law.  It is only available to married couples, granting both spouses an equal and indivisible right to use and enjoy the entire property.  Upon the death of one spouse, title becomes fully vested in the surviving spouse as a matter of law, and no probate proceedings are required.
TBE ownership is highly useful as an asset protection planning tool because the creditor of one spouse cannot interfere with the legal right of the other spouse to use, possess, and enjoy the entirety of the TBE property.  Therefore, in jurisdictions that recognize tenancy by the entirety for married couples, a judgment creditor of one spouse cannot force the sale of the TBE property to satisfy its judgment.  
Today, about half the states in the country still recognize TBEs.  Laws vary from state to state as to what types of property may be owned as a TBE as well as what other requirements must be satisfied to qualify for TBE ownership.  For example, some states only allow real estate to be owned as a TBE.  Other states allow both real estate and certain personal property, such as bank accounts, etc., to be titled in this way.

General Requirements for TBE Property

Some states have unique requirements for property held as tenants by the entirety.  For example, Illinois will only allow a homestead to be held as a TBE property.  Yet, all TBE jurisdictions tend to share the following characteristics:
  • Both spouses must acquire ownership from the same instrument (e.g., deed, bill of sale)
  • Both spouses must acquire ownership together at the same time
  • Both spouses must have joint control
  • Both spouses must have an identical ownership interest in the property
  • Both spouses must have been married (to each other) at the time they acquired the property
  • The surviving spouse must become the owner the property after the other spouse dies

Limitations on the Asset Protection Value of TBE Property

Although tenancy by the entirety is a powerful and inexpensive tool that can be used to protect property, there are some important limitations.  If a married couple divorce, or if the judgment-free spouse should die first, the creditor can force the sale of the property to satisfy its judgment.  Thus, TBE is not a perfect asset protection tool. 

Matrix of State TBE Laws


The following is a matrix of Tenancy by the Entirety laws listed by state.  Please note the following:

  • States marked with ** are Community Property states.
  • DISCLAIMER: This matrix of state-by-state tenancy by the entirety laws may not be the most current.  This matrix is provided for information purposes only. Please verify from official sources before using for legal purposes.


State

TBE Recognized Under State Law?

TBE for Real Property?

TBE for Personal Property?


Alabama

No

No

No

Alaska

Yes

Yes

Yes

California**

No

No

No

Colorado

No

No

No

Connecticut

No

No

No

Delaware

Yes

Yes

Yes

District of Columbia

Yes

Yes

Yes

Florida

Yes

Yes

Yes

Georgia

No

No

No


State

TBE Recognized Under State Law?

TBE for Real Property?

TBE for Personal Property?


Hawaii

Yes

Yes

Yes

Idaho**

No

No

No

Illinois

Yes

Yes

Yes

Indiana

Yes

Yes

No

Iowa

No

No

No

Kansas

No

No

No

Kentucky

Yes

Yes

No

Louisiana**

No

No

No

Maine

No

No

No


State

TBE Recognized Under State Law?

TBE for Real Property?

TBE for Personal Property?


Maryland

Yes

Yes

Yes

Massachusetts

Yes

Yes

Yes

Michigan

Yes

Yes

No

Minnesota

No

No

No

Mississippi

Yes

Yes

Yes

Missouri

Yes

Yes

Yes

Montana

No

No

No

Nebraska

No

No

No

Nevada**

No

No

No

New Hampshire

No

No

No


State

TBE Recognized Under State Law?

TBE for Real Property?

TBE for Personal Property?


New Jersey

Yes

Yes

Yes

New Mexico**

No

No

No

New York

Yes

Yes

Yes

North Carolina

Yes

Yes

No

North Dakota

Yes

Yes

No

Ohio

No

No

No

Oklahoma

Yes

Yes

Yes

Oregon

Yes

Yes

No

Pennsylvania

Yes

Yes

Yes

Rhode Island

Yes

Yes

Yes


State

TBE Recognized Under State Law?

TBE for Real Property?

TBE for Personal Property?


South Carolina

No

No

No

South Dakota

No

No

No

Tennessee

Yes

Yes

Yes

Texas**

No

No

No

Utah

No

No

No

Vermont

Yes

Yes

Yes

Virginia

Yes

Yes

Yes

Washington**

No

No

No

West Virginia

No

No

No

Wisconsin**

No

No

No

Wyoming

Yes

Yes

Yes


Please note the following:

  • States marked with ** are Community Property states.
  • DISCLAIMER: This matrix of state-by-state tenancy by the entirety laws may not be the most current.  This matrix is provided for information purposes only. Please verify from official sources before using for legal purposes.