Many married couples who bought property together prior to marriage are missing out on an important benefit of marriage: holding property as tenants by the entirety.
Unmarried couples often hold property as joint tenants with the right of survivorship, but never make the change to tenancy by the entirety after they tie the knot, or in the case of same-sex couples in Pennsylvania, after their marriages have been officially recognized by the Commonwealth. The difference in types of property ownership could be significant if one spouse is carrying debt or sustains a liability judgment, and the switch is not difficult to make.
Joint tenancy with the right of survivorship is a type of property ownership that allows the property to pass to the surviving person automatically upon the other’s death. Tenancy by the entirety, however, also allows the property to pass directly to the surviving spouse upon the other’s death, but additionally insulates the non-debtor spouse from losing the property for repayment of his or her spouse’s debts.
In other words, if spouse X owes money to a creditor, that creditor may not attach a property owned by spouse X and spouse Y as tenants by the entirety, whereas the creditor may attach to a property owned by spouse X and spouse Y if they owned it as joint tenants with the right of survivorship. The debt could also arise from a judgment against one spouse, such as with liability for an auto accident.
While joint tenancy with the right of survivorship is a good option for unmarried couples, tenancy by the entirety should be the first choice for married couples. The catch is that if an unmarried couple who began as joint tenants with the right of survivorship then subsequently marries, the title does not automatically convert to a tenancy by the entirety. Instead, the now married couple must convert their property interest to a tenancy by the entirety.
This is an issue of special concern for same-sex couples whose marriages were previously unrecognized in Pennsylvania. When Pennsylvania law recognized same-sex marriage, couples who were formerly able to hold property at most as joint tenants with the right of survivorship could realize the benefits of marriage on property ownership, but only if they took steps to do so.
The good news for couples who bought homes pre-marriage as joint tenants with right of survivorship is that switching the deed of property already owned to reflect their marriage is relatively simple. Because the couple already owns the property, they merely need to re-title the property with appropriate language necessary to create a tenancy by the entirety. The deed must contain wording to be clear that the couple is married and wants to enter into this specific type of property ownership, such as “as spouses holding the property as tenants by the entirety” following their names.
The deed must be handled the same way as any other deed, meeting the requirements of notarization and properly recording the document. Pennsylvania does not tax transfers of this type between married individuals to themselves to change the type of property interest after marriage. As making this change providing significant protections is simple and relatively inexpensive, there is no reason to put it off.