Tenancy by the Entirety – Special Joint Tenancy for Married Couples
Illinois, allows husbands and wives to use a special form of co-ownership called tenancy by the entirety for their personal residence.
- Tenancy by the entirety is recognized in Illinois
- In this form of ownership, each spouse has an equal, undivided interest in the property.
- A husband and wife who are tenants by the entirety have rights of survivorship.
- During their lives, they can convey title only by a deed signed by both parties.
- One party cannot convey a one-half interest.
- They have no right to partition or divide.
- A lawsuit against one of the spouses will not put a lien on the house.
- A married couple owning property by the entirety would be eligible for homestead protection in the event of a judgment against either the husband or wife
- On the death of one spouse, the survivor automatically becomes the sole owner.
- The surviving spouse enjoys the benefits of ownership without the delay of probate proceedings.
To create a tenancy by the entirety, the deed must indicate that the property is to be owned “not as joint tenants or tenants in common, but as tenants by the entirety.”
The Illinois Religious Freedom Protection and Civil Union Act was signed into law on January 31, 2011. The act’s purpose is to provide persons entering into a civil union with the “obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.” (750 ILCS 75/20) Civil union partners will be able to hold title to real property as tenants by the entirety after the act’s effective date of June 1, 2011.
Termination of Tenancy by the Entireties
A tenancy by the entirety may be terminated in several ways:
- By a court-ordered sale of the property to satisfy a judgment against the husband and wife as joint debtors (the tenancy is dissolved so that the property can be sold to pay the judgment)
- By the death of either spouse (the surviving spouse becomes sole owner in severalty)
- By agreement between both parties (through the execution of a new deed)
- By divorce (which leaves the parties as tenants in common
Termination of Co-Ownership by Partition Suit
Partition is a legal way to dissolve the relationship when the parties do not voluntarily agree to its termination.
- Cotenants who wish to terminate their co-ownership may file an action in court to partition the property.
- If the court determines that the land cannot be divided physically into separate parcels without destroying its value, the court will order the real estate sold.
- The proceeds of the sale will then be divided among the co-owners according to their fractional interests.
Community Property
Community property laws are based on the idea that a husband and wife, rather than merging into one entity, are equal partners in the marriage. Under community property laws, any property acquired during a marriage is considered to be obtained by mutual effort.
Illinois — Not a Community Property State
Illinois is a marital property state. Illinois has certain similarities to community property states but with important differences. Illinois, too, breaks property down into two major categories based on marital status:
Marital property – A husband and wife acquire joint rights in all property acquired after the date of marriage for the duration of the marriage, all of which will be divided between the two parties in the event of a divorce.
Non-marital property – Property that was acquired prior to the marriage or by gift or inheritance at any time, even during the marriage. If non-marital property is exchanged for other property, if it increases in value, or if it returns income, the exchange, increase, or income also would be considered non-marital property (property belonging to the individual).
If Non-marital property is commingled with marital property, however, a presumption of transmutation is created: the resulting “mixed” property is presumed to be marital property.
The spouses may execute an express contract agreeing to exclude certain property from being classified as marital property.
