A. Tenancy by the Entireties.
1. A conveyance to husband and wife is presumed to create a tenancy by the entireties. This presumption can only be overcome using clear and convincing evidence of a contrary intent.
2. Only husband and wife can be tenants by the entireties, so a deed purporting to create tenancy by the entireties in unmarried persons will create either joint tenancy or tenancy in common, depending on intent.
3. If man and woman acquire property as tenants in common and subsequently marry each other, they remain tenants in common unless they deed the property to themselves again after marriage.
4. The husband and wife are considered a single entity which owns 100% of the property.
5. Neither spouse, acting independently, can sever a tenancy by the entireties. Partition is not available until after divorce.
a. In Clingerman, entireties property was appropriated by the husband, and the wife filed a partition action. She died while the action was pending. The Court held that the misappropriation coupled with the filing of a partition action constituted an implied agreement to sever the tenancy.
b. In a case involving entireties bank accounts, the Court held that spouses are to exercise their withdrawal power “in good faith and for the mutual benefit of both”, and that a misappropriation “works a revocation of the estate by the fiction of the appropriation’s being an offer of an agreement to destroy the [entireties] estate and an acceptance of the offer when the other spouse starts suit; the property is then fit for accounting and division.”
6. The only ways to sever tenancy by the entireties are by joint acts, such as: divorce, joint conveyance, and mutual agreement (either express or implied). The entry of a divorce decree creates a tenancy in common subject to rights of equitable distribution.
7. Property held by the entireties is not affected by the bankruptcy of one spouse, cannot be attached by creditors of one spouse, and title cannot be conveyed by one spouse. “[N]either [spouse] has an individual portion separated, or can be reached by the creditors of either spouse.” The exception to this rule is where individually-held property is conveyed to tenancy by the entireties in fraud of creditors.
Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); Del Borrello v Lauletta, 455 Pa. 350, 317 A.2d 254 (1974).
Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961). See also, Rega v. Rega, 46 Wes.C.L.J. 75 (1964).
Madden v. Gosztonvi Savings & Trust Co., 331 Pa. 476, 482, 200 A. 624 (1938). See also, Howard Savings Bank v. Cohen, 414 Pa. Super. 555, 607 A.2d 1077 (1992).