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Tenancy by the Entirety (Memo 1)

Tenancy by the Entirety

Tenancy by the Entirety (Memo 1)
The attributes of a tenancy by the entirety, and especially that aspect of the tenancy which relates to the "bubble theory" (as I call it), which essentially states that neither party has an interest in the property, but rather in a fictitious entity known as the entirety, which itself holds the title, was explored in Palmer v. Mansfield, 222 Mass. 263, 110 N.E. 283 (1915). The court stated:

When a tenancy by the entirety is created, the husband and wife take the estate as one person, and they take but one estate. In view of the nature of such an estate, on the death of either husband or wife no beneficial interest accrues to the other by survivorship so as to create succession, and so no part of the estate was subject to the [inheritance] tax.

Upon the death of the testator no estate in the property in question passed to his widow. It belonged to her from the time when the tenancy by the entirety was created.

Obviously, the legislature amended the inheritance tax law quite promptly and subjected tenancies by the entirety to taxation.

If you find this concept difficult to grasp, you are in good company. In King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959) Chief Justice Weintraub had this to say:

[The tenancy by the entirety] rests upon the fiction of oneness of husband and wife. Neither owns a separate and distinct interest in the fee; rather each and both as an entity own the entire interest. Neither takes anything by survivorship; there is nothing to pass because the survivor always had the entirety. To me the conception is quite incomprehensible.

On the other issue concerning whether one spouse can convey his or her interest in the entirety to the other in Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927) (the case which held that a divorce would sever a tenancy by the entirety) our court, although intimating that it might be possible, stated that it did not have to decide whether a deed from a one spouse to another would pass title when they held as tenants by the entirety.

However, in Hale v. Hale, 332 Mass 329, 125 N.E.2d 142 (1955)[1] the issue was raised again and the court, citing Bernatavicius, decided that under the Chapter 558 of the Acts of 1912, which amended G.L.c. 209, one spouse could put an end to a tenancy by the entirety by conveying his or her interest directly to the other.

For a more current discussion about the tenancy by the entirety, see Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 612 N.E.2d 650 (1993).

1 Cited in Park, Massachusetts Practice, Real Estate Law, Second Edition, §51.