Understanding the Difference Between Owning A Home as “Tenants in Common” and Owning A Home as “Tenants by the Entirety”

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Real Estate Attorney

Often times I review real estate deeds for clients in order to determine how assets will pass upon their death or eligibility for Medicaid. Many of these deeds are identified by the name used in the title of this post. Although both sound similar, they are very different and each affects how the property is owned.

The term “tenants by the entirety” is real estate ownership that only a husband and wife can have under New Jersey law. The ownership rights of each owner survives death and creates an unified ownership interest. Survivorship means that upon the death of one of the spouses, the other spouse becomes the owner by operation of law. Therefore, the property will pass outside of the provisions of the deceased spouses Will. Unified means that neither spouse has the authority to sever, transfer, gift, or otherwise impact his/her share of the property while alive without the consent of the other spouse. Sine both owners are spouses, a transfer upon death to the surviving spouse is not a taxable event.

New Jersey Statutes dictate that unless the grantees are married, or the deed specifies a joint tenancy, a conveyance from a grantor to multiple grantees creates a “tenancy in common”. It is presumed that with real estate owned as tenants in common there is no survivorship feature. When one owner passes away, that owner’s share passes as part of their probate estate. Each owner has the authority to sell, gift and/or transfer his/her share of the property without the consent of the other owner. No single co-owner has the right to cut out or deprive the other co-owners from occupying the property.

To discuss your NJ Real Estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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