Massachusetts Real Estate Attorney · Real Estate Law
The few words on your deed after your names decide what happens to the home if one of you dies, gets sued, or the relationship ends. Here’s how the three Massachusetts options compare.
| Tenancy by the entirety | Joint tenancy | Tenancy in common | |
|---|---|---|---|
| Who can use it | Married couples only | Any two or more people | Any two or more people |
| If one owner dies | Survivor owns it all | Survivors own it all | Share passes by will or estate |
| Can one owner sell their share alone? | Only subject to the other spouse’s survivorship right | Yes, which ends the survivorship | Yes |
| Protection from one spouse’s creditors | Strong for the family home | None | None |
| After divorce | Becomes tenancy in common | Unchanged | Unchanged |
Married couples: why tenancy by the entirety is often the default choice
For a married couple’s principal residence, tenancy by the entirety offers something the others don’t. Generally, a creditor of only one spouse can’t force a sale of the home while the other spouse lives there. One spouse can mortgage or convey their own interest without the other’s consent, but whoever takes it does so subject to the other spouse’s right to the whole home if they survive. The creditor protection has one exception: both spouses are liable for debts for necessaries, meaning basic family needs.
It isn’t automatic. The deed must say you take title as tenants by the entirety. A deed to two people that’s silent is generally treated as a tenancy in common. And a deed to spouses “as joint tenants” creates a joint tenancy, not a tenancy by the entirety, so the exact words matter.
If the couple divorces, the tenancy by the entirety becomes a tenancy in common, unless the divorce judgment divides the property differently (Bernatavicius v. Bernatavicius, 259 Mass. 486 (1927)).
Unmarried partners and family members
Joint tenancy with right of survivorship is the usual choice when co-owners want the property to pass to the survivor without probate. Keep in mind that any joint tenant can sever the tenancy by deeding away their share, which turns it into a tenancy in common.
Tenancy in common suits investors, or co-owners with unequal contributions who want their share to go to their own heirs.
Don’t forget the homestead
Whichever form you choose, a recorded Declaration of Homestead adds creditor protection for your primary residence beyond the automatic amount.
Changing your mind later
You can change the form of ownership with a new deed, but there can be tax, mortgage and estate-planning consequences. Our article on how property is owned in Massachusetts explains each form in more depth. For a review of your deed, contact our office.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on deeds, property ownership and real estate transfers. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
