Tenancy by the entirety is a form of property ownership that lets married spouses own real estate together as a single legal unit. Each spouse has rights to the whole property, and neither can sell or mortgage it without the other's consent.
It includes a right of survivorship: when one spouse dies, the survivor becomes sole owner without probate. Not every state offers it. Where it exists, it can shield the home from creditors of only one spouse, though that creditor protection varies by state.
Tenancy by the Entirety Basics
| Feature |
What to Know |
| Definition |
A form of shared ownership reserved for married spouses |
| Ownership Rights |
Both spouses have undivided rights to the entire property |
| Survivorship |
Surviving spouse receives sole ownership |
| Sale |
Requires both spouses |
| Mortgage |
Both spouses grant the security interest, but both don't have to sign the note |
| Creditor Protection |
Can protect against certain individual debts under state law |
| Divorce |
Ends or converts the ownership arrangement |
| Availability |
Recognized in some states, unavailable for new deeds in others |
What Is Tenancy by the Entirety?
Tenancy by the entirety is concurrent ownership in which two married spouses hold one unified marital interest instead of separate shares. For how that shows up on paper, see the difference between deed and title.
For example, a married couple buys a $400,000 house in a state that recognizes tenancy by the entirety. Both spouses hold rights to the whole home, even if one paid more of the down payment. Neither can sell it alone, and if one dies, the other owns it outright.
The Legal Information Institute's definition names survivorship and limits on one-sided transfers as defining features.
What Does Tenants by the Entirety Mean?
Tenants by the entirety are the spouses who hold property this way. "Tenancy by the entireties" and "estate by the entirety" mean the same thing.
Do Both Spouses Own 100% of the Property?
Each spouse is said to own the whole, but that isn't a 200% interest. Neither can sell off a 50% share the way a tenant in common can.
How Does Tenancy by the Entirety Work?
- Spouses hold undivided rights in the property.
- Both may occupy and use the home.
- Both must consent to selling or mortgaging the full property.
- Survivorship applies when one spouse dies.
- Some states restrict collection on debts owed by just one spouse.
Can One Spouse Sell the House Without the Other?
No. One spouse can't sell or mortgage the property without the other's signature, even with a buyer lined up.
Can One Spouse Force a Sale?
No. Neither spouse can force a partition sale, the court process for dividing co-owned property, while the tenancy is intact. Divorce changes that.
What Is the Right of Survivorship?
The right of survivorship makes the surviving spouse sole owner when the other dies.
For example, a married couple owns a $450,000 home as tenants by the entirety. One spouse dies. The survivor takes the home through survivorship, not through a will, and it stays subject to any mortgage.
Does Tenancy by the Entirety Avoid Probate?
Yes, for this property. The survivor may need to record a death certificate or affidavit, and other assets may still go through probate.
Can One Spouse Leave Their Interest to Someone Else?
No. A will can't override survivorship, so a sibling named in one spouse's will gets nothing if the other spouse survives.
Survivorship also differs from a life estate, which we explain in fee simple vs. life estate.
Tenancy by the Entirety vs. Joint Tenancy vs. Tenancy in Common
These three forms differ in who qualifies, how shares transfer and whether survivorship applies. For more on the last two, see tenants in common vs. joint tenancy.
| Feature |
Tenancy by the Entirety |
Joint Tenancy With Survivorship |
Tenancy in Common |
| Owners |
Married spouses |
Qualifying co-owners |
Multiple co-owners |
| Structure |
Unified marital interest |
Undivided interests, traditionally equal |
Separate shares, potentially unequal |
| Survivorship |
Yes |
Yes |
No automatic survivorship |
| Independent Transfer |
Restricted |
Allowed, often severing survivorship |
Allowed for owner's share |
| Individual Creditors |
Possible special protection |
Owner's interest can be reachable |
Owner's interest can be reachable |
Tenancy by the Entirety vs. Joint Tenancy
Both include survivorship, but only married spouses can hold a tenancy by the entirety. Two unmarried friends can be joint tenants with right of survivorship, not tenants by the entirety.
A joint tenant who transfers their interest causes a severance that ends survivorship for that share. A spouse can't sever an entireties estate alone.
Tenancy by the Entirety vs. Tenancy in Common
Tenants in common hold separate shares, such as 60% and 40%, and each can transfer their own. At death, a share passes through the owner's estate, not to the co-owner.
Does Tenancy by the Entirety Protect Against Creditors?
In some states, it limits how a creditor collects a debt owed by only one spouse. The protection isn't uniform, so check your state's rules.
Joint debts, mortgages and federal tax claims get different treatment.
What if Only One Spouse Owes Money?
In a state with strong entireties protection, a judgment creditor of one spouse can't force a sale of the home for that debt. Other states give that creditor some remedies against the debtor spouse's interest.
What if Both Spouses Owe the Debt?
Joint debts can be enforced against the home. If both spouses signed the mortgage and default, the lender can foreclose.
Can the IRS Place a Lien on Entireties Property?
Yes. In United States v. Craft, the Supreme Court held that a federal tax lien can attach to one spouse's interest in entireties property. Federal law overrides state creditor protection here.
Which States Allow Tenancy by the Entirety?
Many states recognize tenancy by the entirety, but the rules vary. Some tenancy by the entirety states presume it when a deed names married spouses; others require express language. The table shows a few examples, not a complete list.
| State |
General Treatment |
| Florida |
Recognizes tenancy by the entirety; divorce can convert it to tenancy in common |
| New York |
Presumes tenancy by the entirety for real estate conveyed to married spouses unless another form is specified |
| Pennsylvania |
Recognizes the form and substantial protections against some individual creditors |
| Ohio |
Doesn't allow new entireties interests but preserves qualifying arrangements created before April 4, 1985 |
| California |
Uses community property and other title forms rather than tenancy by the entirety |
Tenancy by the Entirety in Florida
Under Florida Statutes Section 689.15, spouses who hold an estate by the entirety become tenants in common when they divorce.
Tenancy by the Entirety in New York
Under New York EPTL Section 6-2.2, a deed of real property to spouses creates a tenancy by the entirety. The exception is a deed that expressly names another form.
Does Ohio Allow Tenancy by the Entirety?
No, not for new deeds. Ohio Revised Code Section 5302.21 preserves entireties deeds recorded before April 4, 1985. Ohio couples can instead use survivorship tenancies under Section 5302.17.
What Is Community Property With Right of Survivorship?
Some community property states let spouses add a right of survivorship to marital property. It's a different arrangement from tenancy by the entirety.
How Does Community Property Work?
Community property law treats most property acquired during marriage as owned by both spouses. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. A few others allow it by election.
Community property alone doesn't create survivorship.
Community Property With Survivorship
California and Nevada, among others, offer community property with right of survivorship. Its creditor, transfer and tax rules differ from entireties ownership. IRS Publication 523 covers basis rules after a spouse's death.
How Does Tenancy by the Entirety Affect a Mortgage?
Owning the home and owing the loan are separate. A couple can hold title as tenants by the entirety while only one spouse qualifies, but both grant the lien.
Do Both Spouses Have to Sign the Mortgage?
Yes. Fannie Mae's security instrument signing requirements say every owner signs the mortgage or deed of trust, even if their income isn't used. A non-owner spouse also signs when state law requires a waiver of marital rights.
Do Both Spouses Have to Be on the Mortgage Note?
No. The note creates personal liability, while the security instrument creates the lien. A nonborrowing spouse can sign only the security instrument, but their interest is still exposed to foreclosure.
This matters when qualifying using one spouse's income.
Can One Spouse Take Out a HELOC Without the Other?
No. Both spouses must sign the lien documents, though only one has to borrow.
Can Entireties Ownership Prevent Foreclosure?
No. A valid mortgage signed by both owners is enforceable after a default.
What Happens After Divorce?
Divorce ends tenancy by the entirety, and in many states the former spouses become tenants in common.
If one spouse keeps the home, the other usually signs a new deed, often a quitclaim. See our quitclaim deed guide and grantor vs. grantee roles.
A deed doesn't release the departing spouse from the loan. That takes a refinance, payoff or approved assumption with a release. See refinancing a mortgage after divorce.
Does Divorce Remove Survivorship Rights?
Yes. Any later survivorship rights depend on state law, the court order and new deeds.
Can One Former Spouse Keep the House?
Yes, through a settlement or court order plus a deed. The mortgage must be dealt with separately.
How to Establish Tenancy by the Entirety
- Confirm the state recognizes tenancy by the entirety.
- Verify the parties meet eligibility requirements.
- Review the existing deed and mortgage.
- Use an appropriate conveyance to establish the intended ownership.
- Complete required execution and recording.
- Consider creditor, inheritance and tax consequences.
Does Marriage Automatically Create Tenancy by the Entirety?
No. A home one spouse owned before marriage stays in that spouse's name until a new deed changes it.
Can You Change Entireties Ownership to Joint Tenancy?
Yes, with a new deed from both spouses. The change affects creditor protection, survivorship and transfer rights.
What Should Married Buyers Consider?
How you take title affects inheritance, transfers, creditor claims and mortgage paperwork. Match the deed to your estate plan and your state's rules.
The Bottom Line
Tenancy by the entirety gives married spouses survivorship and bars either from transferring the home alone. Some states add protection from one spouse's creditors, but not from joint mortgages or federal tax liens. Both spouses sign the mortgage even if only one signs the note.
Frequently Asked Questions
What Is Tenancy by the Entirety?
Shared ownership for married spouses with survivorship and limits on one-sided transfers.
What Does Tenants by the Entirety Mean?
Spouses who hold property as one marital estate, not separate shares.
Is Tenancy by the Entirety the Same as Joint Tenancy?
No, because entireties ownership requires marriage and restricts transfers more.
How Is Tenancy by the Entirety Different From Tenancy in Common?
Tenants in common hold separate shares with no survivorship. Entireties owners share one interest with survivorship.
Does Tenancy by the Entirety Include Survivorship?
Yes. The surviving spouse becomes sole owner.
Does Tenancy by the Entirety Avoid Probate?
Yes, for that property, though other assets may still need probate.
Can One Spouse Sell the House?
No, not without the other spouse.
Can One Spouse Force Partition?
Not while the marriage and tenancy are intact.
Can Creditors Take the Property?
Some states block one spouse's individual creditors. Joint debts, mortgages and federal tax liens are different.
Can the IRS Put a Lien on Entireties Property?
Yes. Under United States v. Craft, a federal tax lien can attach to the debtor spouse's interest.
Can You Get a Mortgage With Entireties Ownership?
Yes, with both owning spouses signing the security instrument.
Do Both Spouses Have to Sign the Mortgage Note?
No, one spouse can be the sole borrower on the note.
Can One Spouse Obtain a HELOC Alone?
No. Both must sign the lien, though only one has to borrow.
What Happens After Divorce?
The tenancy ends and, in many states, becomes a tenancy in common.
Which States Recognize Tenancy by the Entirety?
Florida, New York and Pennsylvania are among them. Ohio preserves only those created before April 4, 1985.
Does California Have Tenancy by the Entirety?
No, California uses community property and other title forms.
Does Ohio Allow Tenancy by the Entirety?
Only for deeds recorded before April 4, 1985.
Is Community Property the Same as Tenancy by the Entirety?
No, community property is a separate marital property system.
Does Marriage Automatically Create Entireties Ownership?
No, property one spouse already owns needs a new deed.
.jpg?quality=80&width=150)
.jpg?quality=80&width=800)
.jpg?quality=80&width=800)
.jpg?quality=80&width=800)
.jpg?quality=80&width=800)
.jpg?quality=80&width=800)
.jpg?quality=80&width=800)
