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.
46:3-17.4
.
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.
