Massachusetts Agencies

Tenancy by the Entirety (Memo 2)

Tenancy by the Entirety

Before February 11, 1980 date, although a husband could transfer his rights in the tenancy by the entirety,[1] a wife's interest in the estate was so infinitesimal that neither could she convey it nor could it be attached by her creditors. Licker v. Gluskin, 265 Mass. 403, 164 N.E. 613 (1929). In such a case, a deed by the wife would pass no rights whatever to the grantee.

The above concept was discussed in Shwachman v. Meagher, 45 Mass.App.Ct. 428, 699 N.E.2d 16 (1998). In Shwachman Richard and Jane Meagher held their title as tenants by the entirety, which tenancy had been created before the aforementioned date. Philip Shwachman had obtained a judgment against Richard alone. He thereafter obtained an execution and, through a sheriff's sale, acquired Richard's interest in the property. In an effort to dispose of any objection to his title based on Jane's continuing expectancy in the property, Shwachman secured a deed from Jane of her interest in the property. In an action in the superior court that revolved around the question of whether Jane's deed effectively conveyed anything to Shwachman the court ruled that the deed was void and that Jane continued to have an expectancy in the property. On appeal the Appeals Court affirmed the decision and said:

The instant case is entirely governed by the common law, as reflected in such cases as Lowell v. Daniels, 68 Mass. 161, 2 Gray 161, 168-169 (1854) (wife's sole deed purporting to convey her interest in real estate was "absolutely void" without her husband's joint signature, even though the husband subsequently gave his own deed to the same party: "The law has rendered her incapable of such contract.... Her most solemn acts, done in good faith, and for full consideration, cannot affect her interest in the estate . . . . She cannot by her own act enlarge her legal capacity to convey an estate."); Pierce v. Chace, 108 Mass. 254, 258-259 (1871) (even when wife signed husband's deed assenting to his transfer of his interest in the tenancy by the entirety, her act was not legally binding on her nor was she equitably estopped to claim the estate upon her husband's death: "Her agreements . . . were made under a mistake as to her right of property, without fraud or intention to deceive . . . . [It was] a void conveyance of her real estate. She is not thus to be deprived of that protection which the law affords."); Phelps v. Simons, 159 Mass. 415, 417‑418, 34 N.E. 657 (1893) (under the common law, the husband could sell or transfer all of his interest in an estate by the entirety, but the utmost that the transferee could receive was the right to possession and income during the husband's life with the possibility of absolute title should the husband survive the wife; and if the wife should survive, she would be entitled to the property absolutely); Raptes v. Pappas, 259 Mass. 37, [**432] 38-39, 155 N.E. 787 (1927) (creditor who obtained all of the debtor husband's interest in a tenancy by the entirety was entitled to immediate possession and enjoyment of the property, but nothing done by the husband alone could defeat the right of the wife to the whole estate should she survive her husband); Bernatavicius v. Bernatavicius, 259 Mass. at 487, 156 N.E. 685 ("A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act"); Licker v. Gluskin, 265 Mass. 403, 406‑407, 164 N.E. 613 (1929) (which the Superior Court judge rightly relied upon) ("[T]he interest of the wife [in a tenancy by the entirety . . . may [not] be conveyed by her [or] attached by her creditors.... During coverture [the wife can] make no valid conveyance of any interest ... [in the tenancy by the entirety] without the assent in writing of the husband. Her sole deed [is] void.... [T]he interest of the wife as tenant by the entirety is not during coverture subject to attachment, levy [or] sale."); Krokyn v. Krokyn, 378 Mass. 206, 211, 390 N.E.2d 733 (1979) ("[T]he wife's mere expectancy of title is neither alienable nor subject to execution . . . ."); West v. First Agric. Bank, 382 Mass. 534, 543, 545‑546 & nn. 16, 20, 419 N.E.2d 262 (1981) (reaffirming Licker v. Gluskin and noting that, for all of the modern criticisms directed at it, certain practical benefits inhered in a tenancy by the entirety, which still "made sense in common situations"); Carey's Inc. v. Carey, 25 Mass.App.Ct. 290, 295, 517 N.E.2d 850 (1988) ("Thus, generally, in 1977, any attempted conveyance of property held in a tenancy by the entirety by one tenant during the lifetime of the other was void. Both spouses had to join in a deed in order to convey the entire estate and destroy both survivorships.").

In Shwachman, it should be noted, the tenancy by the entirety under consideration was created before the enactment of Chapter 727 of the Acts of 1979, amending G.L.c. 209, §1 (see below), and the court, in a footnote, said:

Substantial reforms that would conceptually support Shwachman's position, were the locus subject to a post‑February, 1980, tenancy by the entirety, were made by St.1979, c. 727, effective for tenancies created after February 11, 1980, but not for earlier tenancies by the entirety such as that of the Meaghers. See Turner v. Greenaway, 391 Mass. 1002, 1003, 459 N.E.2d 821 (1984). Under those reforms, either spouse can convey or encumber his or her interest in property held as tenants by the entirety without the other's consent. See Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150‑152, 612 N.E.2d 650 (1993). A subsequent statute, St.1989, c. 283, codified as G.L. c. 209, Sec. 1A, gave tenants by the entirety under deeds executed prior to February 11, 1980, the right to elect to convert their tenancy to one subject to the provisions of St.1979, c. 727, through specified procedures, but the Meaghers had never done so.

As noted above, after February 11, 1980, both husband and wife were treated equally as to their interests in the tenancy by the entirety. See Chapter 727 of the Acts of 1979, amending G.L.c. 209, §1. Again, although neither party could defeat the other's right to survivorship nor convey the fee title—as neither held that title, as it was bundled up in the fictitious entity called the entirety—either could transfer to another their interests, namely, the right to the rents, products, income and the control, management and possession of the property. Then it would become a "waiting game" as to which spouse died first. The characteristics of the tenancy by the entirety, as affected by the new legislation, were exhaustively examined in Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 612 N.E.2d 650 (which was cited in Shwachman), wherein Chief Justice Liacos wrote:

The [new] statute did not, however, alter the characteristics of the estate itself. Merely because each spouse is "equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety," it does not follow that each has an equal one‑half interest in the property. On the contrary, a tenancy by the entirety remains a unitary title, and the statute simply guarantees each spouse an equal right to the whole. Whatever the husband could do at common law, the wife now may do as well. Each spouse continues to have a indestructible right of survivorship, and the estate remains inseverable and not subject to voluntary partition. (Citations omitted.)

Nonetheless, either spouse may convey or encumber his or her interest in property held as tenants by the entirety.

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[A grantee from one of the spouses], could acquire [an] interest in the property, namely a right wholly defeasible should the [other spouse] the nondebtor spouse, survive him.

Based on the foregoing, it is clear that in the case of a tenancy by the entirety created[2] after February 11, 1980 a deed by one spouse to another party followed by the death of her the other spouse[3] will result in full title being vested in the other party. (On the other hand, after such a conveyance, if the executed the deed dies before the other spouse, the surviving spouse will end up with the title.) 

1 The interest transferred is the right to possession and to collect rents and profits, but not the fee title. [Back to Text

2 The tenancy itself has to be created after this date, as the statute is not retroactive. See Levy v. Crawford, 33 Mass.App.Ct. 932, 600 N.E.2d 597 (1992). Note, however, that a tenancy created after that date can, upon proper election, be treated in the same fashion as one created after that date. See G.L.c. 209, §1A. [Back to Text]

3 The parties must continue to be married to each other, since a divorce will convert the tenancy by the entirety to a tenancy in common. See Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927). [Back to Text