19.08 Tenancies By The Entireties

When two people own the same property at the same time, they own it as joint tenants, tenants in common, tenants by the entirety or as community property. At common law, a tenancy by the entirety was the form of concurrent ownership held by husband and wife. It could be created and continued only so long as the tenants maintained the required unities of time, title, interest and possession, and maintained, the unity of person achieved by a valid marriage.

Legal attitudes and approaches among the states toward the existence and creation of a tenancy by the entirety are varied and often leave the status of this tenancy in a state of uncertainty.

In this respect, state law must be thoroughly researched.

• Requirement of Marriage
  
  Property can be held by the "entirety" only if the holders are husband and wife.
  
  A valid marriage is an essential requirement for a man and a woman to become tenants by entirety.
  
  
• Expression of Intent
  
  The creation of a tenancy by the entirety normally requires a clear expression of intent.
  
  
• Compliance with State Law
  
  State law must be consulted to determine any special wording or requirement necessary for the creation of a tenancy by the entirety.
  
  
• Situations where no Tenancy by the Entirety Arises
  
  
  • Title acquired by adverse possession
    
  • Through partition deed
  
  
• Unities of Title That are Necessary
  
  
  • Unity of interest
    
  • Unity of title
  • Unity of time
  • Unity of possession
  • Unity of person - a valid marriage
  
  
• Direct Conveyance of a Tenant by the Entirety
  
  Because of the traditionally important unities, it was at first not possible for one spouse, as sole owner of the property, to convey it directly to himself or herself and spouse as tenants by the entirety. Now, direct conveyance of ?tenancy by the entirety? is being authorized in many states either by statute or court decision.
  
  
• Presumptions
  
  In some jurisdictions, a conveyance to a man and a woman, as husband and wife, is construed as a tenancy by the entirety unless the intent not to create a tenancy is specifically indicated.

• Survivorship
  
  On the death of one spouse, the whole of an estate by the entities remains in the sole ownership of the surviving spouse. This is so not because he or she is vested with any new or increased interest, but because the survivor succeeds to the entire property to the exclusion of heirs and creditors of the deceased spouse and without the need for probate.
  
  
• Each spouse owns the entire estate.
  
  
• Neither spouse, acting alone, can convey or encumber the property.
  
  
• The management and control of the property is exercised by the husband and wife.
  
  
• The property is not capable of unilateral partition.
  
  
• Generally, in a bankruptcy proceeding against one spouse, a tenancy by entirety property is not considered an asset of the debtor's estate. However, if both spouses file individual bankruptcies, the trustee may, through the consolidation of the proceedings, acquire control over the tenancy by the entirety property.
  
  
• Creditors of neither spouse can reach the property. Obviously this does not apply to a joint obligation incurred by the husband and the wife. (See Federal Tax Liens--Section 6.08.3)
  
  
• Neither spouse can dispose of the property by will.

Factors that terminate a tenancy by the entirety:

• Death
• Divorce
• In some states, a direct conveyance of one tenant into the other
• Joint conveyance from both spouses into one spouse
• Mutual agreement

An estate by the entirety possesses qualities, particularly the right of survivorship, in common with a joint tenancy and is sometimes regarded as a modified form of joint tenancy. Strictly speaking, however, an estate by the entirety is not a joint estate. A joint tenancy can be created between any number of persons regardless of marital status or the owners' classification as natural or statutory persons, and each joint tenant will retain his, her or its individuality. An estate by the entirety can only be created between two persons who must be husband and wife, and the individuality of each is lost because in legal theory the husband and wife take as one person.

A joint tenancy can be converted into a tenancy in common and the right of survivorship thereunder can be defeated, in whole or in part, by the conveyance of one joint tenant's interest to another. An estate by the entirety cannot, technically speaking, be destroyed by the deed of either spouse acting alone; however, a divorce destroys the tenancy and converts it into a tenancy in common.

Depending on state law or local custom, the vesting of the title held by a tenancy by the entirety should be shown as A & B.

Any request for the showing of marital status or owner's status must be approved by senior underwriting personnel.

The Supreme Court, in United States v. Craft, 2002 WL 561332 (April 17, 2002) ruled that a federal tax lien against a spouse will attach to that spouse's interest in property held as tenants by the entireties. A state tax lien may or may not attach to the interest of a taxpayer-tenant, depending upon the law of the state where the land is located. A federal tax lien attaches to the delinquent taxpayer's interest and can be enforced either by a sale of the interest of both spouses with distribution of the proceeds to the other spouse or by a sale of the interest owned by the delinquent taxpayer. The federal tax lien is extinguished upon the death of the taxpayer-tenant and does not transfer to the surviving tenant of any interest in the property, unless, under state law, a lien against a tenant by the entireties automatically effects a severance of the tenancy by the entireties. Subsequent case law indicates that the implications of Craft may be extended to other types of federal judgment liens. See 18 U.S.C. § 3613(c); United States v. Godwin, 446 F. Supp. 2d 425, 427 (E.D.N.C. 2006) (holding that a restitution order is a lien in favor of the United States as if the liability of the person fined were a liability for a tax).

If you are insuring on a current conveyance or mortgage by spouses who hold title as tenants by the entireties, joint tenants, cotenants with right of survivorship, or homestead, you must require a release or discharge of any outstanding federal tax lien against either spouse.