Remember once the marriage ends by death or divorce, tenants by the entirety no longer
applies. It is only necessary to determine whether a couple owns property as tenants
by the entirety in two situations.
Non-home property jointly owned by a separated married couple, or
Language in a deed or will that contains such language as “with rights of survivorship”, “joint tenancy”, or “tenancy by the entirety,” may indicate the grantor's intention to create a joint tenancy or a tenancy by the
entirety. In such an event, refer the case to the Atlanta Regional Commissioner for
Management and Operations Support (ARC MOS), Center for Programs Support, for an opinion
from the Regional attorney.
The following tenancy by the entirety rules apply in the Atlanta region:
Alabama: Alabama does not recognize joint tenancy by the entirety, and therefore, we recognize
husband and wife as tenants in common. Each is free to dispose of this ownership interest.
However, an instrument that grants property to husband and wife may expressly create
a right of survivorship to the surviving spouse, if the instrument grants the property
to husband and wife “as tenants in the entirety,” as joint tenants “with rights of survivorship,” or with similar language showing an intent to create a right of survivorship.
Florida: Florida presumes that any property, real or personal, owned by a husband and wife
is a “tenancy by the entireties” unless the instrument conveying the property expresses a contrary intent. Property
held as a tenancy by the entireties has six characteristics: (1) unity of possession
(joint ownership and control); (2) unity of interest (the interests in the account
must be identical); (3) unity of title (the interests must have originated in the
same instrument); (4) unity of time (the interests must have commenced simultaneously);
(5) survivorship; and (6) unity of marriage (the parties must be married at the time
the property became titled in their joint names). If the individuals are not married
and the language of the instrument does create survivorship rights, the individuals
are tenants in common.
Georgia: In Georgia, tenancy by the entirety refers to joint tenancy between husband and wife.
For instruments taking effect after 1/1/1977, Georgia law recognizes right of survivorship
if it is created by an express grant in the instrument, but any language creating
survivorship rights creates a joint tenancy, not a tenancy by the entirety. In a joint
tenancy, a spouse may dispose of his or her share of the property without the approval
of the other spouse.
Kentucky: Kentucky recognizes joint tenancy by the entirety. However, the instrument granting
real property to husband and wife must expressly create a mutual right to the entirety
by survivorship. Otherwise, the instrument granting real property to husband and wife
creates a tenancy in common. A deed showing that the husband and wife jointly own
the property with the right of survivorship establishes ownership by the entirety.
Mississippi: Same as Kentucky (in this section). Additionally, language indicating survivorship,
joint tenancy, or tenancy by the entirety may show a grantor's intention to create
an interest other than a tenancy in common.
North Carolina: Any conveyance of interest in property to a husband and wife creates a tenancy by
the entirety, unless the conveyance states otherwise. North Carolina presumes that
any joint tenancy owned by a husband and wife is a “single tenancy by the entirety,” unless otherwise provided.
South Carolina: Same as Alabama (in this section).
Tennessee: Tennessee presumes that an instrument conveying property to a husband and wife creates
a tenancy by the entirety unless otherwise provided, and that property held jointly
by a husband and wife is held as tenants by the entirety.
NOTE: In most States in the Atlanta region, when a husband sells property, his wife must
sign the deed to show that she will not make a claim to the property after the husband's
death. (In some States, the husband must sign the deed when his wife sells property.)
This does not mean the wife's consent is necessary to sell the property. The property
can be legally sold without the wife's signature, but the buyer does not receive clear
title and the value of the property may, therefore, be less. See the examples below.
Example: Mr. and Mrs. Frank Armstrong separated when Mrs. Armstrong entered a nursing home
one year ago. Mr. Armstrong has filed a claim for himself. He alleges they are joint
owners of non-home property valued at $6,000.00.
Florida, Tennessee and North Carolina: Mr. and Mrs. Armstrong are presumed to hold the non-home property as joint tenants
by the entirety, unless the instrument conveying property to them expresses otherwise.
We must develop whether Mrs. Armstrong will consent to her husband's sale of his interest
before we can determine whether Mr. Armstrong has a countable resource.
Alabama, Georgia, and South Carolina: Each is free to dispose of his or her one-half interest in the property, and Mr.
Armstrong would be ineligible (conditional benefits).
Kentucky and Mississippi: It will be necessary to see if the deed shows tenants by the entirety. If the instrument
granting the non-home property to Mr. and Mrs. Armstrong does not expressly create
a mutual right to the entirety by survivorship or state they jointly own the property
with the right of survivorship, then each is considered free to dispose of his one-half
interest in the property, and would be ineligible. If the instrument does have this
language (or in Mississippi, language indicating survivorship, joint tenancy, or tenancy
by the entirety), then it shows that the Armstrong's are tenants by the entirety,
and it is necessary to develop whether Mrs. Armstrong will consent to her husband's
sale of his interest before we can determine whether Mr. Armstrong has a countable