Does Tenancy by the Entirety (TBE) Have Right of Survivorship?

Tenancy by the Entirety (TBE) is one option among several ways of holding property with one or more others. TBE is only available for married couples who are treated as a single entity for tax purposes. In this usage, both parties have equal rights to the entire property, including these salient advantages:

1. Neither party can sell or otherwise transfer their ownership without the consent of the spouse and
2. If one spouse dies, the surviving spouse automatically becomes the sole owner and does not need to enter probate.
3. If one spouse incurs a debt, the property held as TBE can’t usually be seized by creditors collecting that debt.

Do married couples have other choices for holding property together?

Yes, married couples can choose other means of owning property together. While TBE is typically reserved for married couples filing taxes jointly, some states include domestic partners in the eligible population. For married couples, the alternate structures include:

• Community property
• Joint tenancy
• Tenants in common (TIC)
• Individual ownership

Each option offers distinct advantages and should be considered depending on the couple’s financial needs and interests. For example, a tenancy in common arrangement bestows separate financial interests for each spouse, allows different amounts of ownership, and allows each TIC participant to distribute their share to an heir of their choice rather than automatically to their partner.

TBE is similar to community property; states that recognize one form of ownership exclude the other. The breakdown is approximately even between states allowing each option. One significant difference relates to creditors. As noted, with a TBE structure, a debt incurred by one spouse can't be satisfied by a lien on the TBE property. This restriction is not the case with community property.

What are the core components of TBE?

The TBE structure requires five elements of unity:

• Unity of marriage. Only married couples can choose TBE, except in states that recognize domestic partners, whether of the same or different genders.
• Unity of time. The partners take ownership of the property simultaneously.
• Unity of possession. Each spouse has the right to the entire property.
• Unity of title. Both spouses establish ownership using the same title.
• Unity of interest. Both partners have the same ownership interest; hence, neither can sell or transfer the property without the consent of the other.

The right of survivorship is one of the key benefits of both TBE and community property. In each case, the surviving spouse gains the share belonging to the deceased partner. However, one significant difference relates to creditor access. With TBE, the property held under that structure can’t be used to satisfy a debt incurred by only one spouse. With community property, the property can be used to satisfy the obligation incurred by either spouse individually.