Does A Real Estate Deed Need to Disclose The Husband and Wife Owners as Married?

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

Recently clients had me review the deed to their personal residence. It lists both their names as owners but does not state “as husband and wife.” There is also no mention to either of their individual rights of survivorship on the deed. The fact is the couple was married at the time they purchased the home. Is this a cause for concern? Should they be advised to have a corrective deed prepared or is it not necessary to disclose their status as husband and wife to get the enhanced creditor protection of such a disclosure.

New Jersey law is clear. When a husband and wife acquire title to real estate by deed, the presumption is that they take title as tenants by-the-entirety, unless the deed states otherwise.

When you review the statute N.J.S.A. 46:3-17.2, which is posted below for your convenience you will see that a deed naming a married couple is deemed to be a tenancy by the entirety and you need not file a corrective deed.

Here’s the Statute N.J.S.A. 46:3-17.2. Tenancy by entirety

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.

To discuss your NJ Real Estate and Estate Planning 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.