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Tenancy by the Entirety for Same-Sex Couples

Tenancy by the Entirety

To:          All Assistant Recorders
From:     Edmund A. Williams, Chief Title Examiner
Date:      May 6, 2004
Subject: Tenancies by the Entirety effective May 17, 2004

When presented with a deed or other document to be registered which refers to, or establishes or conveys title in or to two individuals "as tenants by the entirety," (or which uses any similar form of words intended to create, establish, or refer to title in those individuals as tenants by the entirety), registration districts of the Land Court should not, as a prerequisite to registration, inquire, conduct investigation, or require production of proof in any form concerning the marital status of the two individuals, or their qualification or entitlement to be married to each other. This is so without regard to whether the two individuals are or are not (or appear from their names to be or not to be) either of the same sex or of the opposite sex. A document referring to, establishing, or conveying title in or to two individuals may, but to be registered need not, contain words reciting the marriage of the two individuals to each other.

Following registration of a deed or other instrument which conveys title to, or establishes title in, two individuals as tenants by the entirety, if fee ownership of registered land is changed as a result, a new transfer certificate of title should issue in their names, with the recitation on the face of the new transfer certificate that they hold their title "as tenants by the entirety." If fee ownership does not change as a result, the appropriate notation on the memoranda of encumbrances should be made, again with the recitation that the two individuals hold their title "as tenants by the entirety." The proper form for these recitations and notations on certificates of title is: "A and B, as tenants by the entirety" without references such as "husband and wife," "married to each other," or similar language.

The registration of any document running in favor of two individuals "as tenants by the entirety," and the issuance by the districts of, or the making by the districts of notation on, any certificate referring to two individuals as "tenants by the entirety," does not preclude subsequent challenge to their right or ability to hold their title as tenants by the entirety, in an appropriate judicial proceeding brought in the Land Court or other court of competent jurisdiction.

In case of any doubt, inquiries from district personnel should be directed to the chief Title Examiner in Boston, or his designee.