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Are Married Couples Joint Tenants?

Property ownership in Massachusetts is a confounding matter for many married couples. As you may know, Massachusetts is not a community property state. For that reason, it's not easily presumed that a property purchased by a husband and wife together would enjoy a 50/50 split in property interest.

To protect you and your spouse's property interest, you may want to look into a joint tenancy.

I Do: Entering a Joint Tenancy or Tenancy by the Entirety

Joint tenancy is a type of home ownership where everyone on the title has an undivided interest. For example, if two spouses are on title to the house as joint tenants, they both own equal and undivided shares of the property.

In Massachusetts, a tenancy by the entirety is a form of ownership that is very similar to joint tenancy but is only available to married couples. It arises between a married couple when a single instrument (a) conveys property to both of them and (b) states that they take the property as spouses, "tenants by the entirety."

Both forms of tenancy require unity of time and unity of title.

'Til Death Do Us Part: The Right of Survivorship

A joint tenancy or tenancy by the entirety is especially attractive to married couples because such tenancies create a right of survivorship. That means when one joint owner dies, his or her interest passes automatically to the surviving joint owner(s) without it having to go to probate.

Pro-tip to married couples: Always pay extra attention to the way you take title when purchasing a home, since not every form of ownership has the right of survivorship.

'Til "Death" Do Us Part: Terminating a Joint Tenancy

Of course, it's not uncommon for couples to call it quits before death does them part.

If the couple divorces, a tenancy by the entirety is converted into a tenancy in common.

Under a joint tenancy, a spouse may destroy the joint tenancy (and turn it into a tenancy in common) by selling his ownership position in the property to another party. Note: unlike joint tenancy, tenancy by the entirety does not allow one spouse to convey his/her interest to a third party.

Remember, a tenancy in common includes no right of survivorship and must be divided according to the rules of the probate court.

For more information on what form of ownership is best for you, you may want to consult an experienced real estate attorney.

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