Contents
Overview
- Tenants in Common -- Yes & presumed
- Joint Tenants -- Yes, but survivorship language must be included
- Tenancy by Entireties -- Yes
- Community Property -- No
- Homestead -- No
- Joinder of Non-titled Spouse -- Only if pending divorce
Tenancy by the Entirety
Creation Language
Tenancy by the Entirety is presumed in a deed to a husband and wife. The deed does not have to recite the tenancy, nor must it state that they are married. The law presumes TbE unless the deed states differently. If the grantees are not actually married, tenancy created will depend on language of deed - see below Case Law.
Joint Tenancy with Right of Survivorship
68 P.S. § 110. Lands held by joint tenancy to descend as estates of tenants in common
If partition be not made between joint tenants, whether they be such as might have been compelled to make partition or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by devise, and shall be subject to debts, charges, curtesy or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose in the same manner as if such deceased joint tenants had been tenants in common: Provided always, That nothing in this act shall be taken to affect any trust estate.
§ 6:5. Presumption against survivorship
While, at common law, joint tenancies were favored, and the doctrine of survivorship was a recognized incident to a joint estate, the statute providing that lands held by joint tenancy are to descend as estates of tenants in common abolishes survivorship as an incident of joint tenancy, although it does not prevent the creation of the right of survivorship. Thus, joint tenancy with a right of survivorship is a legitimate and permissible means by which individuals may hold title. The presumption now, however, is that all tenants, who are not husband and wife or trustees, hold jointly as tenants in common, unless a clear intention to the contrary is shown.
Creation Language
"Joint tenants" alone does not create survivorship. The deed must state "joint tenants with right of survivorship," or similar language. Without the survivorship language, title passes as tenants in common.
If the deed states "tenancy by the entireties" but the parties are not married, case law finds that the intent to create a survivorship exists. But caution should prevail--if the circumstances demonstrate someone that may contest, be wary.
Case Law
Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (Pa. 1948) - property deeded to man and "his wife" "as tenants by the entireties" although grantees not actually married showed intention to create a right of survivorship.
Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (Pa. 1959) - same as Maxwell v. Saylor, except deceased paid full purchase price, holding that payment of purchase price was irrelevant to fact that survivorship was intended.
Pennsylvania Bank & Tr. Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (Pa. 1968) - deed to brothers as "tenants by the entireties" held to create right of survivorship.
Est. of Reigle, 438 Pa. Super. 361, 652 A.2d 853 (Pa. Super. Ct. 1995) - conveyance to mother and son "as tenants by the entireties" creates a joint tenancy with right of survivorship.
Tenancy in Common
In absence of any stated tenancy, the law presumes tenants in common. If a joint tenancy deed does not include survivorship language, then presume tenants in common.
Case Law
Tchr. v. Kijurina, 365 Pa. 480, 76 A.2d 197 (Pa. 1950) - conveyance to "[Man] and [Woman] his wife" who were not actually married held to create a tenancy in common because description as "wife" (when not true) is insufficient to show an intent to create the right of survivorship
Combinations
Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749 (Pa. 1951) - deed to "[Son], a single man, and [Father] and [Mother], his wife" created a 1/2 interest in Son held as tenants in common with 1/2 interest held by marital unit.
In re Michael's Est., 421 Pa. 207, 218 A.2d 338 (Pa. 1966) - deed to "[Man #1] and [Woman #1], his wife, tenants by the entireties and [Man #2] and [Woman #2], his wife, as tenants by the entireties, With right of survivorship" held to create a tenancy in common between the 2 couples (each married unit holding a half of the fee, and each husband and wife holding their half as TbyE amongst themselves).
Edel v. Edel, 283 Pa. Super. 551, 424 A.2d 946 (Pa. Super. Ct. 1981) - for "an undivided one-fifth interest or moiety to vest in the said [Brother #1], singleman, and another undivided one-fifth interest or moiety to vest in the said [Sister], singlewoman; and the remaining undivided three-fifth interest or moiety to vest in the said [Brother #2] and [Brother #2's Wife], his wife, as tenants by the entireties" held to create tenancy in common between Brother #1, Sister, and Brother #2/Wife
