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What is tenancy by the entirety?

What is tenancy by the entirety?

Most people who own real estate are probably familiar with the term “tenancy by the entirety”.  However, many people are probably not really sure exactly what it means.  In a previous blog post, the various ways individuals can hold title to real estate were discussed.  Here, tenancy by the entirety will be  discussed in a little more detail.  Holding title to real estate as tenants by the entirety is a form of joint ownership of real estate.  There is a specific statute in Illinois that deals with tenancy by the entirety ownership of real estate.

There are certain rules to holding title to real estate as tenants by the entirety:

  1. Only two people may hold title to property as tenants by the entirety and they must be married to each other.
  2. The real estate must be the parties’ primary residence.

Married couples may also hold the equitable title in a land trust as tenants by the entirety.

Tenants by the entirety may not dispose of their interest in the property without the consent of both parties.  Why hold title as tenants by the entirety?  The major benefit to a tenancy by the entirety form of joint ownership is that the real estate is protected from the judgment creditors of one of the parties.  A judgment creditor of one spouse may obtain a judgment, but the creditor will generally not be able to foreclose upon the property that is held in tenancy by the entirety.  (Note:  If the judgment creditor has a judgment against both parties, the protection afforded to tenants by the entirety disappears.)

The tenancy by the entirety status remains with the property as long as the owners remain married to each other.  If the parties divorce, the property shall revert to a tenancy in common and the judgment debtor’s interest in the property will become fair game to judgment creditors.  Upon the death of one party, the survivor will retain the entire interest in the estate, similar to a joint tenancy.  In order for a deed, mortgage or lease of real estate properly held in tenancy by the entirety to be effective, both parties must sign the document.

If you do not currently own your primary residence as tenants by the entirety with your spouse, it would be a good idea to consider this form of ownership.  If you have any other questions about holding title to real estate in Illinois, whether it be in Arlington Heights, Mount Prospect, Palatine or even outside Cook County, or if you are looking to buy or sell real estate, or to simply transfer title to your primary residence into tenancy by the entirety, please do not hesitate to contact the Law Offices of Roger W. Stelk at (847) 506-7330.

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