What are tenants by entirety?

Jul 16, 2021

Kiritsis Law Group 212 922 0005

By: John Kiritsis, Esq., CPA, MBA, MS, JD, LL.M

Generally, tenants by entirety refer to tenancy by husband and wife of a property, where the legal right of survivorship applies. Most jurisdictions view such types of tenancies as con-current estate. Federal tax laws seem to be based at least in the part by the same aforementioned legal theory. For example, an LLC that is owned by two members who are a husband and wife, would be treated as a disregarded tax entity, similarly to the tax classification conferred to a single member LLC (notwithstanding tax laws or tax elections). Drafters and reviewers of real  estate documents creating tenancy by entirety should be mindful of the potential tax ramifications. Prior to the legalization of same-sex marriage, tenancy by entirety sometimes provided a good estate planning technique for same-sex couples in jurisdictions which permitted same-sex civil unions. Many jurisdictions differ on whether specific language is required for the creation of joint tenancy.

 

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