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The deed says “husband and wife”. But they aren’t, and one dies. Now what?

8/27/2015 | Commercial Litigation Blog

The deed says “husband and wife”.  But they aren’t, and one dies.  Now what?

As with so much of what lawyers do, it depends.

Under Pennsylvania law, when a married couple takes title to real property as “husband and wife”, they become “tenants by the entireties”.  They each own the entire property, neither can sell or mortgage it without the other’s participation (which offers a degree of protection from a faithless spouse).  When one entireties tenant dies, full title to the property vests in the other entireties tenant.  ONLY married couples can take title as tenants by the entireties.

If the deed says “husband and wife”, but they aren’t, the two owners become “joint tenants with right of survivorship”.  Either can sever the joint tenancy without the other’s concurrence, and when one joint tenant dies, full title to the property vests in the other joint tenant, just as is with tenants by the entireties.

  Ah, but if New Jersey law applies, the result is radically different.  Under New Jersey law, a failed “tenancy by the entireties” becomes a tenancy-in-common, not a joint tenancy.  When one tenant-in-common dies, his or her share passes to his or her heirs; it does not pass to the other owner.  This can seriously complicate efforts to clear the title to real property that was owned by persons who were thought to be husband-and-wife, but weren’t.

If you have a situation involving real property in Pennsylvania or New Jersey where one of the owners has passed away and you need advice regarding the interest held by the surviving owner, or assistance in clearing the title to the property so that it can be sold, I’d be happy to discuss the matter with you.

Bill Levant