Understanding Property Titles Between Spouses: Joint Tenancy, Tenants in Common, and Tenants by Entirety
When buying a property with your spouse, you might think the hardest part is choosing the house with the right kitchen island or the one that doesn’t smell like a wet dog. But hold up—there’s more. How you put your names on that property title matters—like, a lot. It can affect everything from what happens if one of you passes away (morbid, but important) to what creditors can grab if someone gets into financial hot water.
So, let’s break down the three most common ways couples hold property together, and let’s keep it simple—like 10-year-old simple (with a splash of humor because we all need that).
-
Joint Tenancy with Right of Survivorship (JTWROS)
This one sounds fancy, but it’s pretty straightforward. You and your spouse own the house together, equally. If one of you passes away, the other gets full ownership automatically—no will, no probate, no waiting.
Key Features:
-
Unity of Time: You both get the property at the same time. No jumping in halfway through.
-
Unity of Title: You both get the property through the same document—like the deed.
-
Unity of Interest: You both own equal parts. It’s 50/50. Even if you paid for 99% and your spouse paid for 1%, it’s still 50/50. Fair? Maybe not. Simple? Yes.
-
Unity of Possession: You both get to use the whole house. You can’t tape a line down the middle and say, “Your side, my side.”
Pros:
-
If one of you passes away, the survivor gets the property automatically.
-
You skip probate (the legal process to settle someone’s estate).
Cons:
-
One spouse can sell their share without asking the other. Yep, that could get awkward.
-
If one spouse gets sued or goes bankrupt, their share could be taken.
-
Creditors can sometimes force a sale if one spouse owes big money.
Example: Let’s say you and your spouse, Alex, buy a house as joint tenants. Sadly, Alex passes away (after making you promise to keep watering those plants that you both know you’ll forget about). Because of the right of survivorship, you automatically get full ownership of the home—no legal battles, no drama.
But, let’s flip it. What if Alex got into some bad gambling debts, and a creditor comes after their share? They can force a sale of the property, even if you didn’t gamble away a dime. Ouch.
-
Tenants in Common
This one is the rebel cousin of joint tenancy. You each own a part of the property—but it doesn’t have to be equal. You can own 70%, and your spouse can own 30%. Or maybe you’re feeling super generous and go 99/1.
Key Features:
-
You each own a separate share.
-
Shares can be unequal.
-
No right of survivorship. If one spouse dies, their share goes to whoever they name in their will (or their family if there’s no will).
-
You can sell your share whenever you want—no permission needed.
Pros:
-
Good if you’re putting in different amounts of money.
-
If you want your share to go to your kids (or your cat) after you die, this is your best bet.
Cons:
-
No automatic transfer to the surviving spouse.
-
Your spouse could end up co-owning the house with your Uncle Larry if that’s who you leave your share to. Awkward BBQs ahead.
-
Creditors can grab your share if you get into financial trouble.
Example: You and Alex buy a house as tenants in common. You own 60%, and Alex owns 40%. You pass away, and in your will, you leave your share to your cousin Bob. Now Alex and Bob own the house together. Bob is a bit of a hoarder and turns his half into a home for his porcelain doll collection. Fun times.
-
Tenants by the Entirety (TBE)
This is the VIP club for married couples. Not all states have this option, but if yours does, it can be pretty sweet. Think of it as joint tenancy but with extra protection.
Key Features:
-
Only for married couples.
-
You both own the whole property together (like a team).
-
Right of survivorship: When one spouse dies, the other automatically gets the property.
-
Neither spouse can sell their share or mess with ownership without the other’s permission.
Pros:
-
Protects the home from creditors going after just one spouse. If Alex racks up $50,000 in credit card debt, creditors can’t touch the house unless both of you owe the debt.
-
Automatic transfer to the surviving spouse.
Cons:
Example: You and Alex buy a house as tenants by the entirety. Alex starts a questionable llama farm business and ends up with a mountain of debt. Creditors try to take the house, but nope—it’s protected. Unless both of you signed for that llama farm loan together, the house is safe.
Why Does This Matter?
You might be thinking, “Okay, cool, but why should I care?” Because choosing the wrong type could mean:
-
Your spouse doesn’t automatically get the house if you die.
-
You end up co-owning your home with your in-laws.
-
Creditors take a chunk of your house.
What Happens When a Spouse Dies?
If your spouse dies, you don’t want to be dealing with lawyers and paperwork while also figuring out how to work the coffee maker alone. Here’s what to do depending on your title:
-
Joint Tenancy or TBE: You automatically get the house. Still, file an affidavit of survivorship and update the title.
-
Tenants in Common: Your spouse’s share goes to their heirs. Could be you, could be someone else. Check the will, and probably call a lawyer.
Best Advice for a Widow or Widower:
-
Review the title as soon as possible. Delays can make things messy later.
-
Consult a real estate attorney to confirm ownership and clear up any questions.
-
If your spouse died and you had JTWROS or TBE, update the title in your name alone.
Special State Rules
Some states are a little quirky:
-
In some places, if you bought a home before you got married and held it as joint tenants, it might automatically become TBE when you say, “I do.”
-
A few states allow joint tenancy to be partitioned (split up), which could force a sale.
-
Community Property States (like California) have different rules altogether. That’s a whole other ballgame.
What About Estate Planning?
No matter what title you choose, estate planning is still important. Wills, trusts, and powers of attorney can ensure your spouse and family are taken care of. Don’t wait until you’re arguing over who left the lights on.
Final Thoughts
Choosing how to hold title with your spouse isn’t just about paperwork; it’s about protecting your family and your home. Here’s a cheat sheet:
-
Want automatic transfer if one of you dies? JTWROS or TBE.
-
Want to leave your share to someone else? Tenants in Common.
-
Want creditor protection? TBE (if your state allows it).
Talk to a real estate attorney to confirm what’s best for you. A little planning now can prevent big headaches later.
