Title Tips - March 2014
TENANCY BY THE ENTIRETY
STEWART TITLE TIPS - MARCH 2014
TENANCY BY THE ENTIRETY - is recognized in about half the states. Rhode Island common law recognized the estate of tenancy by the entirety between husband and wife. Bloomfield v. Brown, 25 A.2d 354 (1942). An estate of tenancy by the entirety is held by both husband and wife in single ownership, by a single title. Each takes the whole estate and neither holds a separate or divisible share. Neither party can dispose of his or her part without consent of the other. Cull v. Vadnais, 406 A.2d 1241 (1979). As in the case of joint tenancy, tenants by the entirety is created when four unities exist, namely: time, interest, title and possession. In addition, there is a fifth unity in that husband and wife were considered one person in common law. Van Ausdall v. Van Ausdall, 135 A. 850 (1927). Consequently, divorce terminates a tenancy by the entirety and the parties become tenants in common. Survivorship is lost. In Massachusetts, where one spouse has died, it is the practice to record an Affidavit of No Divorce.
An estate held as tenants by the entirety is not subject to levy and sale on an Execution based upon a judgment against one spouse alone. In Rhode Island tenancy by the entirety can sustain a prejudgment attachment, but the interest of one spouse is not subject to levy and sale. Cull v. Vadnais , 406 A.2d 1241, 1245 (1979). The contingent interest of the debtor spouse can be attached, but not sold unless and until the debtor spouse outlives the non-debtor spouse. If the non-debtor spouse survives the debtor spouse, he or he will take free and clear of the attachment or execution. Levy of an execution against the contingent interest of the debtor spouse is stayed by operation of law. In Re Gibbons, 459 A.2d 938, 940 (1983). By reason of R.I.G.L. 9-26-23 a writ of execution has a duration of twenty years, but that term will not begin to run unless and until the debtor spouse outlives the non-debtor spouse.
A problem arises when through inadvertence or mistake, a conveyance is granted to two people who are not husband and wife as tenants by the entirety. Survivorship is lost and the grantees are tenants in common. In Connecticut, where the estate is not recognized, a curative statute causes such a conveyance to result in a joint tenancy (General Statute 47-14 (a)). Likewise, Massachusetts has such a statute (M.G.L. Chapter 184 7). Rhode Island has no such statute.
In 2011, Rhode Island extended the estate of tenancy by the entirety to same sex partners in a civil union. R.I.G.L. 15-3.1-6 provides: "A party to a civil union lawfully entered into pursuant to this chapter shall have all the rights, benefits, protections, and responsibilities under law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of civil or criminal law as people joined together pursuant to Chapter 15-3."
Furthermore, Rhode Island has specifically granted reciprocity to partners in civil unions licensed in other states. R.I.G.L. 15-3.1-8 states: "A civil union or registered domestic partnership that extends benefits and responsibilities without the status of marriage and legally entered into in another jurisdiction shall be recognized in Rhode Island as a civil union, provided, that the relationship meets the eligibility requirements of this Chapter."
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