Does a Deed Have to Recite Tenants by the Entirety in Order to Grant Stronger Rights to Married Owners

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Estate Planning and Real Estate Attorney

If a deed is signed by two persons who are married but the deed does not recite that they are married or husband and wife or tenants by the entirety, etc., does this omission cause this ownership to be deemed tenants in common? (Tenants in common means owning real estate as co-owners each with a percentage of ownership rights.)

Here are the statutes that address this question. It’s worth a quick review if you’re married or if you purchased your home before you got married.

46:3-17 Tenancies in common; joint tenancies

No estate shall be considered an estate in joint tenancy unless expressly set forth in the grant creating such estates that it was or is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common.

46:3-17.2 Tenancy by entirety; creation

A tenancy by entirety shall be created when:

  1. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife; or
  2. A husband and wife become the lessees of real property or personal property under a written instrument containing an option to purchase designating both of their names as husband and wife; or
  3. An owner spouse conveys or transfers an interest in real property or personal property to the non-owner spouse and the owner spouse jointly under written instrument designating both of their names as husband and wife.
    Language which states “…. and …. His wife” or “…. and …… her husband” shall be deemed to create a tenancy by the entirety.

46:3-17.3 Construction of instrument creating a property interest

No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create a tenancy in common or joint tenancy.

If two people take title prior to marriage, however, the subsequent marriage does not create a tenancy by the entirety. A new deed must be prepared and disclose its intended status.

To discuss your NJ estate planning or real estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.