There are different forms of real estate ownership that married couples can use to own real estate. The most recognized form for a married couple is to own their home as Tenants by the Entirety. A tenancy by the entirety is ownership in real estate under the fictional assumption that a husband and wife are considered one person for legal purposes. This method of ownership conveys the property to them as one person. An estate by the entirety can only be created between two persons who must be husband and wife. They must be married and their ownership interests cannot be conveyed without the consent and signature of both spouses. In theory the individuality of each spouse is lost because the husband and wife take as one person.
Under this form of ownership, when one spouse dies title to the property passes to the surviving spouse entirely without the need for probate. An advantage of this form of ownership is that no legal proceeding needs to take place at the death of one’s spouse. There is no need for a will or probate because title automatically passes to the surviving spouse. In many states, if a married couple owns property and the title deed does not stipulate the form of ownership, then a tenancy by the entirety is presumed under state law. In other states, the tenancy must be explicitly stated in the deed to create the tenancy and right of survivorship. Not all states recognize this form of ownership.
Married couples might also hold title in Joint Tenancy. In a joint tenancy the couple will hold title to their real estate jointly with equal undivided interests and withrights of survivorship. An undivided interest is an ownership right to use and possess the entire property. However, no single co-owner can mortgage, sell or otherwise convey the real estate without the consent of the other joint tenant. When a joint tenant dies the right of survivorship entitles the surviving co-owner to an equal share of the deceased share of ownership without the need for probateor legal action. An advantage of this type of ownership is that the parties on title need not be married or related and that title automatically passes at the death of the joint tenant to the surviving joint tenant. In some states the title deed must explicitly confer the right of survivorship.
A couple might also hold title to their home as Tenants in Common. In a tenancy in common the couple will hold title to their real estate jointly with equal rights toenjoy the property during their lives. However, unlike a tenancy by the entirety or joint tenancy, tenants in common hold title individually for their respective part of the property and can convey or mortgage their portion of the property without the consent or joinder of the other tenant in common. Unlike a joint tenancy ortenancy by the entirety, there is no right of survivorship in a tenancy in common. When a tenant in common dies, their property interests will pass to their heirs or their devisees specified in their Last Will and Testament. The death of a tenant in common, therefore, will likely require a legal proceeding to determine the rightful owner(s) of the deceased tenant’s interests.
Another form of vesting title to property owned together by married persons or by domestic partners is as Community Property. Community property is distinguished from separate property, which is property obtained prior to marriage or prior to a domestic partnership by separate gift or bequest, after legal separation, or which is agreed in writing to be owned by one spouse or domestic partner. Since all such property is owned equally, both parties must sign all documents and agreements transferring the property or using it as security for a loan. Each spouse has a right to pass on their share to whomever they wish in a last will and testament. This differs from property owned in joint tenancy in that neither spouse can pass their share to anyone but the other spouse.
Community Property with Right of Survivorship is a form of vesting title to property owned together by spouses or by domestic partners. This form of holding title shares many of the characteristics of community property but adds the benefit of the right of survivorship similar to title held in joint tenancy. On the death of an owner, the decedent’s interest ends and the survivor owns all the interest in the property.
Because married couples may hold title to their homes in different forms, extreme care and caution must be exercised when changing a couple’s tenancy. Doing so without careful planning can have profound unforeseen effects on the couples’ property rights and estate plans. It’s important to seek the advice of a legal professional to make sure that when title is taken to real property, it meets the married couples needs.
Disclaimer: The above is for informational purposes only. The Company assumes no legal liability or responsibility for the accuracy.