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Tenants By The Entirety

Tenants by the entirety.

For married persons, houses are usually owned Tenants by the entirety. This means the house automatically goes to the surviving spouse outside the Will without having to go through probate.

For non-married persons, the Deed is either tenants in common [equal ownership usually] or joint tenancy- property does to the survivor.

Under New Jersey law, each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses. Upon the death of a spouse, the survivor is then the sole owner. Newman v. Chase, 70 N.J. 254, 259, 359 A.2d 474, 477 (1976). Real property held by spouses as tenants by the entirety may not be partitioned. By contrast, real property held by tenants in common may be partitioned. Id. at 260-61, 359 A.2d at 477.

A tenant by the entirety can alienate his or her right of survivorship, and a judgment creditor of either spouse may levy and execute upon such right. King v. Greene, 30 N.J. 395, 412, 153 A.2d 49, 60 (1959). The purchaser at an execution sale of the interest of a debtor spouse in real property becomes a tenant in common with the nondebtor spouse. Newman v. Chase, 70 N.J. at 260, 359 A.2d at 477. However, partition is not automatically available in such situations under New Jersey law. Id. at 262, 359 A.2d at 478. It is within the equitable discretion of the Superior Court to deny partition. Id. at 266, 359 A.2d at 478.

 

The NJ statute reads:

 

46:3-17.2. Tenancy by entirety A tenancy by entirety shall be created when:

 

a. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife; or

 

b. A husband and wife become the lessees of real property or personal property under a written instrument containing an option to purchase designating both of their names as husband and wife; or

 

c. An owner spouse conveys or transfers an interest in real property or personal property to the non-owner spouse and the owner spouse jointly under written instrument designating both of their names as husband and wife.

 

Language which states ....... and ......., his wife or ........ and ........, her husband shall be deemed to create a tenancy by the entirety.

46:3-17.3. Property interest No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create a tenancy in common or joint tenancy.

 

46:3-17.4width=12. Written consent of both spouses Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by entirety during the marriage or upon separation without the written consent of both spouses.

 

46:3-17.5. Surviving spouse sole owner Upon the death of either spouse, the surviving spouse shall be deemed to have owned the whole of all rights under the original instrument of purchase, conveyance, or transfer from its inception.

 

46:3-17. Tenancies in common; joint tenancies From and after February fourth, one thousand eight hundred and twelve, no estate shall be considered and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate that it was or is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common, any law, usage, or decision theretofore made, to the contrary notwithstanding.

 

46:3-17.1. Joint tenancies; creation Any conveyance of real estate, hereafter made, by the grantor therein, to himself and another or others, as joint tenants shall, if otherwise valid, be as fully effective to vest an estate in joint tenancy in such real estate in the grantees therein named, including the grantor, as if the same had been conveyed by the grantor therein to a third party and by such third party to said grantees.

 


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Ken Vercammen articles

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