Tenants By The Entirety

Tenancy by the Entirety holds significant importance for married couples.

This legal arrangement offers unique advantages that can greatly impact the distribution of assets upon the death of one spouse.

In this blog, we will delve into the intricacies of Tenancy by the Entirety.

It explores its definition, characteristics, and relevance within the wills and estate planning context.

Defining Tenants By The Entirety

Tenants by the Entirety (TBE) is a legal designation for real property ownership.

It is exclusively available to married couples. 

This form of ownership is predicated on the presumption that the property is owned by the marital union rather than by individual spouses. 

In essence, the property is considered an entity in and of itself, distinct from the separate interests of each spouse.

Characteristics Of Tenants By The Entirety

Unity: One of the fundamental principles of TBE is the unity of ownership. 

This means that both spouses jointly own the entire property, and neither possesses a divisible share.

Right Of Survivorship: 

Perhaps the most significant characteristic of TBE is the right of survivorship

In the event of the death of one spouse, the surviving spouse becomes the owner of the property.

It is without the need for probate or the inclusion of the property in the deceased spouse’s will. 

This feature ensures seamless asset transfer within the marital unit.

Creditor Protection: 

TBE provides a notable layer of protection against the individual debts of one spouse. 

Creditors typically cannot place liens or enforce judgments on property held as TBE to satisfy the debts of only one spouse.

Tenancy By The Entirety In Wills And Estate Planning

While TBE primarily pertains to property ownership, it can impact estate planning.

This is particularly true regarding the distribution of assets through wills. 

Here are key considerations:

Automatic Transfer: 

Assets held as TBE will transfer to the surviving spouse upon the death of one spouse. 

As a result, these assets do not need to be specified in the deceased spouse’s will.

However, having a comprehensive estate plan in place is still essential to address other assets and matters.

Estate Tax Benefits: 

TBE can provide certain estate tax benefits. 

The marital deduction allows unlimited assets to pass in jurisdictions where estate taxes apply.

This will be between spouses without incurring federal estate taxes.

This deduction can be advantageous in reducing the overall estate tax liability upon the second spouse’s death.

Planning For The Next Generation: 

While TBE simplifies the transfer of assets between spouses, it may necessitate additional planning.

This will be when passing assets to the next generation or addressing beneficiaries outside the marital unit. 

A well-crafted will can address these concerns, ensuring your wishes are upheld.

Example 1 – The Smith Family Home

Background Scenario:

John and Sarah Smith, a married couple, decide to buy a house together.

They choose to hold the property as Tenants by the Entirety.

The house is worth $500,000, and they contribute $250,000 each to purchase it.

They understand that this form of ownership provides unique legal protections for married couples.

Situation:

Tragically, John passes away unexpectedly. Since the property was held as Tenancy by the Entirety, Sarah automatically becomes the sole owner of the house, even if John had specified a different arrangement in his will.

The property doesn’t go through probate, and creditors cannot make a claim against it for John’s debts. Sarah now owns the house outright and can decide to keep living there or sell it.

Example 2 – The Andersons’ Estate Planning

Background Scenario:

Mark and Emily Anderson, a married couple, own various assets, including a house, savings accounts, and investments.

They decide to create a comprehensive estate plan.

As part of their planning, they choose to structure their real estate holdings as Tenancy by the Entirety to provide security and continuity for the surviving spouse.

Situation:

Several years later, Mark falls seriously ill and passes away.

Mark leaves specific personal items and some financial assets to their children and grandchildren in his will.

However, the house, which he co-owned with Emily as Tenants in the Entirety, automatically transfers to Emily upon his death.

This transfer happens without the need for probate, ensuring a seamless transition of ownership.

Emily now has the option to live in the house, sell it, or pass it on to their heirs according to her own estate plan.