Massachusetts Agencies


Tenancy by the Entirety

A divorce will sever a tenancy by the entirety causing it to become a tenancy in common. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927) . The reason for this, of course, is that (i) a tenancy by the entirety can exist only between married persons and (ii) a joint tenancy can be created only with the use of language to that effect. That leaves, in such a case, the only remaining tenancy, namely a tenancy in common. But a divorce will not disturb a joint tenancy when created by appropriate words because a joint tenancy is not dependent upon the marital status of the parties.[1] The question, of course, remains whether a deed to married persons as joint tenants would be "converted" into a tenancy by the entirety. Before 1973 this would have been the case. See Franz v. Franz, 308 Mass. 262, 32 N.E.2d 205 (1941). (Prior to 1885 a deed to husband and wife without the recitation of any tenancy would create a tenancy by the entirety.) But since the passage of Chapter 210 of the Acts of 1973 (amending G.L.c. 184, §7) a deed to two married person as joint tenants will create a joint tenancy and not a tenancy by the entirety. Their subsequent divorce will not affect the tenancy.

1 Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927) tells us that "the tenancy by the entirety is essentially a joint tenancy modified by the common law theory of the unity of husband and wife," and points out that '[divorce] divides the common law unity hitherto existing [and] creates two individuals in place of the unity theretofore recognized by the common law as existing." As the court points out, "The foundation and continuance of a tenancy by the entirety are inconsistent with the legal conception of a man and woman no longer in a state of matrimony toward each other. When persons who have been tenants by the entirety cease to be husband and wife, the legal factors necessary to that tenancy have gone out of existence." So the reason that a divorce shatters a tenancy by the entirety is that the element necessary to support this special type of joint tenancy – a valid marriage between the parties is gone. On the other hand a traditional joint tenancy does not depend for its existence upon this special relationship of marriage so the termination of the marriage – an unnecessary element to the tenancy would have no effect on the tenancy. Whether the parties were ever married or ceased to be married after taking title is irrelevant. See Lima v. Lima, 30 Mass. App. Ct. 479, 570 N.E.2d 158 (1991).