Tenancy by the Entirety

Tenancy by the entirety (or, tenancy by the entireties) is a special form of joint tenancy available only to husband and wife similar in many aspects to joint tenancy. For example:

The most notable aspect of tenancy by the entirety is that upon the death of one tenant, the surviving tenant takes possession of the whole—the so-called right of survivorship. In fact, tenancy by the entirety is a special form of joint tenancy, i.e., one that can exist between only husband and wife. Common to both is the right of survivorship.^[1]

With that said, there are aspects of tenancy by the entireties that differentiate it from tenancy in common and joint tenancy. One important difference is the difference in presumption:

Where the deed conveying property to a husband and wife contains no qualifying words, the grantees take and hold the estate as tenants by the entirety. This is so even where the husband and wife are not designated as such in the deed. However, a husband and wife may take real estate as joint tenants or tenants in common, if…that intention is clearly expressed in the deed or will.^[2]

There is one other major difference between a joint tenancy and a tenancy by the entirety. In Indiana:

The law in this State is clear that property held in a tenancy by the entireties is held by a single legal entity created by the fiction of the unity of husband and wife. It is similarly well settled that one spouse cannot convey or encumber the property so held without the consent of the other.^[3]

Both spouses must consent to a transfer, and it is not enough that one claims the ability to act for the other, since “the marriage relationship alone does not establish the relation of principal and agent between husband and wife.”^[4]

Therefore, each spouse is somewhat protected by the inability of the other to (for instance) suddenly sell the property to a third person without consent of the other spouse.

Finally, to reiterate, when one spouse dies, the other spouse automatically becomes sole owner of the property in question, without any further estate or legal action taken. As noted by an Indiana case:

An essential trait of this tenancy is that it “devolves upon the surviving spouse the ownership of the property in real estate, free and clear of the individual indebtedness of the other spouse.” When one spouse dies, the survivor, “being already seized of the whole, can acquire no new or additional interest” due to the survivorship. Rather, the survivor “holds the entire estate, not by virtue of any right which he acquires as survivor, but by virtue of the original grant.”[5]

[1] Powell v. Estate of Powell, No. 88A01-1402-PL-59, 2014 WL 2988174 (Ind. Ct. App. July 3, 2014)

[2] Ramer v. Smith, 896 N.E.2d 563, 567 (Ind. Ct. App. 2008) (internal citations omitted)

[3] State Dep't of State Revenue, Inheritance Tax Div. v. Union Bank & Trust Co., 177 Ind. App. 632, 634, 380 N.E.2d 1279, 1280 (1978)

[4] Heffner v. White, 113 Ind. App. 296, 45 N.E.2d 342, 346 (1942)

[5] Flatrock River Lodge v. Stout, 130 N.E.3d 96, 100 (Ind. Ct. App. 2019)