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Massachusetts Agencies

Unmarried Persons

Tenancy by the Entirety

Under G.L.c. 184, §7 it was decided in Fuss v. Fuss (No. 2), 373 Mass 445, 368 N.E.2d 276 (1977) that a deed to two persons as tenants by the entirety who were not married to each other would vest them with title as tenants in common. The logic was (i) the law presumes a tenancy in common, (ii) a joint tenancy can be created only with specific language stating that the parties are to hold jointly and (iii) a tenancy by the entirety can be held only as between married persons. The language employed in the deed in Fuss was "tenants by the entirety," and the court concluded that since the parties were unmarried they could not hold that way, and that since the deed did not specifically call for a joint tenancy they could not hold that way. That left tenancy in common as the only option.[1]

However, in 1979, in response to Fuss the legislature amended G.L.c 184, §7 to provide:

A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.

The foregoing amendment, by its terms, applies only to conveyances and devises made after its effective date.

1 In Morris v. McCarty, 158 Mass. 11, 32 N.E. 938 (1893) a deed ran to two unmarried persons as "tenants by the entirety and not as tenants in common." The court stated that since the parties could not hold as tenants by the entirety, and since the deed excluded the possibility of title being held as tenants in common, the only remaining option, a joint tenancy, would arise.