Differences Between Tenants by the Entirety and Joint Tenants with Rights of Survivorship

There are crucial distinctions between tenants by the entirety (TBE) and joint tenants with rights of survivorship (JTWROS). While both involve co-ownership of property, the rights and protections against creditors vary depending on the title held. One commonality is the right of survivorship.

When one spouse or co-owner passes away, the surviving spouse or co-owner automatically becomes the sole owner of the property. Tenants by the entirety are exclusive to spouses, offering protection from debts incurred by a deceased spouse. On the other hand, joint tenants with right of survivorship see property automatically transferring to the remaining owner(s) upon death.

Rights of Survivorship

In case of tenants by the entirety, survivorship rights are automatic and included in the deed for joint tenancy. This can bypass probate court and override the deceased spouse's heirs-at-law or will, except in specific circumstances such as both spouses passing away simultaneously. In such cases, probate is necessary unless arrangements like a living trust are made.

Tenancies by the Entirety Held by Spouses

Exclusive to husbands and wives, tenancies by the entirety (TBE) require equal ownership. Legislative efforts have been made to accommodate same-sex marriages by replacing "husband" and "wife" with "spouse" in TBE deeds, although this change has not yet been enacted. Same-sex couples should ensure TBE deeds are created properly to ensure recognition.

Other TBE Provisions and Protections

Under TBE, both spouses must agree to any termination, sale, or transfer of ownership. This ownership status offers protection against sole debts or liabilities of one spouse, except in cases of joint debts that result in judgments. However, tax debts might affect one spouse's interest. TBE may be extended to other accounts depending on state laws.

States That Recognize TBEs

As of 2022, several jurisdictions recognize tenancies by the entirety, including states like Alaska, Florida, Maryland, and Virginia. These states acknowledge TBE as a form of property ownership providing specific protections and benefits to spouses.

Joint Tenants With Rights of Survivorship

In contrast, joint tenants with rights of survivorship (JTWROS) involve co-ownership where each tenant holds an equal share of the property. Upon one owner's death, the surviving owner(s) automatically assume ownership, outside of probate. However, each tenant has the right to sell or transfer their share, converting ownership to tenants in common.