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Canino v. Canino

A-2711-05T3 (N.J. Super. App. Div. 2007) (Unpublished)

DEEDS; TENANCY BY THE ENTIRETIES — It is not necessary that a deed recite the marital status of a married couple because absent a manifested intention in their deed to create a tenancy in common or a joint tenancy, married couples are presumed to hold property as tenants by the entireties.

After their marriage in 1999, a couple purchased property with money from the husband’s father. Title was taken in their two names, but “without reference to their relationship as husband and wife.” The deed did not designate their interests “as joint tenants or tenants in common.” During the pendency of a divorce action, the husband died in a motorcycle accident. His will left his entire estate to his minor children. His wife continued to reside in the house with those children.

Then, the husband’s estate sued the wife “contending the parties held title to the [] property as tenants in common rather than as tenants by the entirety.” It claimed it was entitled to a one-half interest in the property. The lower court ruled against the estate and on appeal, the Appellate Division agreed with the lower court. In doing so, it rejected the estate’s argument that “the property was held as a tenancy by the entirety, not a tenancy in common, because the conveyance did not include the designation ‘husband and wife,’ which [the estate asserted] is required under N.J.S.A. 46:3-17.2 to create a tenancy by the entirety.” The applicable statute provides that a tenancy by the entirety shall be created when the written instrument designates “both of the names as husband and wife.” It also expressly provides language stating “X and Y, his wife” or “X and Y, her husband” are deemed to create a tenancy by the entirety. Both the lower court and the Appellate Division rejected the estate’s argument, concluding that New Jersey statutes do not mandate the use of the words “husband and wife” to create a tenancy by the entirety. According to the Court, the cited statute “merely specifies that one is created if those words are used.” Instead, the Court pointed to N.J.S.A. 46:3-17.3, “which codifie[d] the common law presumption that a husband and wife hold as tenants by the entirety whenever they hold property together, unless the document of title expresses otherwise.” Thus, because nothing in the deed “manifested an intent to create a tenancy in common or a joint tenancy” on the property, it was entirely proper to conclude that the parties held the property as tenants by the entirety. Thus, upon the husband’s death, his interest in the property passed to his wife by operation of law.


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