Tenants by entireties secures spousal rights


September 18, 1994|By Michael Gisriel

Q: My wife and I own our house as tenants by the entireties. If one of us die, do we need a new deed to give title to the remaining spouse? Also, does the title of the house have to pass through the estate of the spouse who dies first?

C. Bateman, Lutherville

A: One of the most important features of owning your house as tenants by the entireties or as joint tenants, if you are not married, is the right of the surviving spouse or surviving joint tenants to acquire automatically the interest of the deceased spouse or joint tenant.

This right of survivorship cannot be overridden by the execution of a will or the probate of the estate; it can only be destroyed by the voluntary or involuntary (that is, foreclosure) action of the spouse or joint tenants.

A judgment lien recorded against only one spouse cannot be executed against a property held as tenants by the entireties.

But a judgment lien recorded against one joint tenant can be executed, with that tenant's interest sold or "partitioned," which would destroy the joint title. The existence of a recorded judgment lien, however, does not affect the right of survivorship if the death occurs before execution of the judgment.

Q: We recently purchased a house. Due to a mortgage program geared to home renovations, the mortgage was greater than the purchase price. At settlement, we paid extra transfer and recordation taxes even though our purchase contract says these charges should be evenly split between the buyer and seller. Was this correct?

D. Quisyaid, Middle River

A: It is possible that what you describe is correct. For example, if in Baltimore City you paid $50,000 for a house but had a $60,000 mortgage, the amount of transfer and recordation taxes due would be $1,330. Since the seller is only liable for one-half the amount due on the $50,000 deed, the split would be $637.50 from the seller and $692.50 from the buyer.

The extra $10,000 on the mortgage is the responsibility of the buyer only -- $10,000 times 0.55 percent, or $55 extra.

Call your settlement company to go over the math.

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