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Tenancy by the Entirety

Under old English law, a man and a woman became one person when they married. What a romantic concept. That one person, however, was essentially the man. Married women did not have the right to own property. Under this old law, known as tenancy by the entirety, the husband had a superior right of possession in the marital home. If he wanted to kick the wife out of the home, he could do so. In addition, any income earned from the marital home through rents or otherwise belonged to the husband. About the only right the wife had was the right to inherit the home should she outlive her husband. But, there was a significant advantage to the tenancy by the entirety, namely, the marital home was protected from the claims of the wife’s or husband’s creditors.

Note that a tenancy by the entirety will not protect the home from the claims of joint creditors of the husband and wife. So, if the husband owed a credit-card debt or was sued successfully, for example, as a result of an automobile accident, the house could not be reached by his creditors if title to the home were held through a tenancy by the entirety. However, if the husband and wife jointly owed a credit-card debt or both were held responsible for an automobile accident, the house could be reached by their creditors even if it were owned as a tenancy by the entirety.

In many states, this anachronistic law was abolished, although 25 states still allow it to be chosen as a way for a husband and wife to hold title to their home. In some states, such as Massachusetts, the sexist aspects of the law have been abolished so that husbands and wives have equal rights in the home during their lifetimes, but the survivorship and creditor protection provisions of the law have been maintained.

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