Forms of Property Ownership

Spouses generally share property under one of the following three forms of co-ownership:

Joint tenancy. A form of ownership that exists when two or more people own property that includes a right of survivorship. Each person has the right to possess the property. If one partner dies, the survivor becomes the sole owner. Any two people--not just spouses--may own property as joint tenants. A creditor may claim the debtor's interest in joint tenancy property. In other words, a creditor could force the sale of joint property because of the debt of only one of the joint tenant.

Tenancy by the entirety. Allowed only in some states, tenancy by the entirety is a type of co-ownership of property by a husband and wife. Like joint tenancy, it includes a right of survivorship. But a creditor of one spouse may not attach (seize) the property because of the debt of just one tenant. Thus, tenancy by the entirety provides more protection for the owners than joint tenancy.  Each party usually must consent to the sale of the property. Divorce may result in a division of the property held in tenancy by the entirety, as well as division of property held in other types of tenancy.

Tenancy in common. This form of co-ownership gives each person control over his or her share of the property, and the shares need not be equal. The law does not limit tenancy in common to spouses. A tenancy in common has no right of survivorship; when one spouse dies, his or her share passes to the heirs, either by will or by state laws.

Tenancy rules vary from one state to another. Some tenancies are complex and must be created in a precise manner; otherwise the courts may not enforce them.