Same-Sex Marriage and Tenancy by the Entirety

October 24th, 2013

Remember the Tenancy by the Entirety? It was like a joint tenancy, with the four unities (time, title, interest, and possession), plus the all-important fifth unity–marriage. The benefits of the tenancy by the entirety is, that in most states, creditors can’t reach it (unlike a joint tenancy).

And now that same-sex marriage is legal in many states, same-sex couples can now avail themselves of this fifth unity, and retitle their land as tenancies by the entirety:

The strongest way to hold title, available only to married couples, is the tenancy by the entirety. Like the joint tenancy, the tenancy by the entirety has the attribute of survivorship. Meaning, when one tenant dies, the surviving tenant automatically becomes the sole owner. The reason this is considered to be the strongest form of ownership is that the claims of one tenant’s creditors do not attach to the real property owned by the tenancy by the entirety. The one exception is if the creditor is the Internal Revenue Service.

“Same sex couples who now own real property as joint tenants, and who marry, should retitle their property as tenants by the entirety,” said Lawrence S. Jacobs, a lawyer in the Rockville office of McMillan Metro, who specializes in estate planning for same-sex couples.

Retitling is a relatively simple matter. All that is involved is to prepare and record a new deed. Deeds to modify the tenancy are exempt from transfer and recordation taxes in all three local jurisdictions. Roy L. Kaufmann, a lawyer at Jackson & Campbell in Washington, agrees: “Why not enjoy the protections against creditors that the tenancy by the entirety provides?” Kaufmann added that “unless estate planning dictates otherwise, tenants in common should also consider retitling their property into a tenancy by the entirety.”

I’ll add this for my tenancy by the entirety lecture.