The Benefits Of Owning As Tenants By The Entirety

There are several different forms of ownership in Massachusetts.  How you own your property could make a big difference in how the property is transferred at death or the ability for creditors to reach your property while you are living.  As a result, how your property is titled should be discussed when planning your estate.

You may own real estate as tenants-in-common, joint tenants or tenants by the entirety. Both joint tenancies and tenancy by the entirety create a right of survivorship, but only married couples may own real estate as tenants by the entirety.  The advantage of this type of ownership over joint tenancy is creditor protection.  If one spouse should have financial difficulties, a creditor cannot force the property to be sold unless both spouses consent to the sale.  If both spouses do not agree, the creditor will typically place a lien on the property to be satisfied if  the property is sold prior to death.  If the spouse that owed the debt is the first spouse to die, the interest in the real estate will pass by operation of law to the other spouse with no obligation to satisfy the debt.

M.G.L. c. 209 s. 1 states that the interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.  As noted in c. 209, the non-debtor spouse must be living in the property to retain protection.

All three types of ownership have advantages and disadvantages, so you should consult with a competent real estate and estate planning attorney before establishing or changing ownership of your property.