Married couples in the United States generally hold title to real estate in one of five ways: sole ownership, community property (sometimes with a right of survivorship), joint tenancy with right of survivorship, tenancy by the entirety, or tenancy in common. Each shapes who inherits the home, who can sell or mortgage it, how creditors can reach it, and what happens in a divorce. Deciding how to hold title to property when married is partly a state-law question and partly an estate-planning one, and the wrong choice can push a surviving spouse into probate or expose the family home to one partner’s debts.
Before looking at the options, it helps to know what you’re actually choosing among. Four things move with title form: whether the property passes automatically to the surviving spouse or through a will, whether one spouse can act on the property alone, how creditors of one spouse can reach it, and how the property is taxed when it’s sold or inherited. Your state matters too. Community property rules apply in nine states, tenancy by the entirety exists in roughly 25, and the default when a deed simply names two people varies from place to place.
Sole Ownership
One spouse can hold title alone during a marriage. People end up here because one partner owned the home before the wedding, inherited it, or bought it with separate funds. In common law property states, which are the majority, property titled in one spouse’s name is generally treated as that spouse’s separate property. In community property states, a home bought with either spouse’s earnings during the marriage is typically co-owned regardless of whose name is on the deed.
Sole ownership carries real risk for the other spouse. If the titleholder dies without a will, the survivor’s share depends entirely on state intestacy rules and may be smaller than expected. In a divorce, the non-titled spouse may still have a claim under equitable distribution or community property law, but proving it is harder without a name on the deed. Unless there’s a specific reason to keep title in one name, most estate planners point married couples toward some form of co-ownership.
Joint Tenancy With Right of Survivorship
Joint tenancy with right of survivorship (JTWROS) is the most common form of co-ownership for married couples in common law states. Both spouses own equal, undivided shares. When one dies, the other automatically becomes full owner without probate. The transfer happens by operation of law, so no will is needed to cover the property.
The tradeoff is flexibility. Neither spouse can leave their share to anyone else in a will, because survivorship overrides testamentary instructions. If you’re in a second marriage and want your share to go to children from your first, joint tenancy won’t do that. Ownership must be equal, so no 60/40 splits. And any joint tenant can sever the tenancy by transferring their interest to a third party, which converts the whole thing into a tenancy in common.
Tenancy by the Entirety
Tenancy by the entirety is reserved for married couples and recognized in roughly 25 states. Some allow it for all types of property; others limit it to real estate. Like joint tenancy, it carries automatic survivorship, so the property passes to the surviving spouse outside probate. It adds two protections joint tenancy doesn’t.
First, neither spouse can sell, mortgage, or transfer their interest without the other’s consent. The couple is treated as a single owner. Second, a creditor with a judgment against only one spouse generally cannot force a sale of the property or place a lien on it. That creditor shield is the main reason couples in states that offer it choose tenancy by the entirety over joint tenancy, especially when one spouse runs a business or carries professional liability.
The shield has one important gap. The IRS can attach a federal tax lien to a delinquent spouse’s interest in property held as tenants by the entirety. The Supreme Court confirmed this in United States v. Craft (2002), and the IRS values that interest at one-half of the property.1Internal Revenue Service. Notice 2003-60 If the delinquent spouse dies first, the lien evaporates because that spouse’s interest ceases to exist, and the survivor takes the property free of the IRS claim.
Tenancy in Common
Tenancy in common is the most flexible form of co-ownership and the default in many states when a deed simply names two people. Each spouse owns a distinct, divisible share, and those shares can be unequal to reflect unequal contributions to the purchase price or whatever the couple agrees.
The critical difference is that tenancy in common has no right of survivorship. When one spouse dies, their share passes through their will, or through intestacy laws if they don’t have one, rather than automatically to the surviving spouse. The share goes through probate, which adds time and cost. This structure fits couples in blended families who want to leave their interest to children from a prior relationship, or spouses who want stakes that reflect unequal contributions.
The exposure is that a creditor with a judgment against one spouse can place a lien on that spouse’s share and, in some cases, force a partition sale of the whole property. There’s no built-in protection for the other spouse’s interest. If creditor protection matters and your state doesn’t offer tenancy by the entirety, ask an attorney about a trust.
If You Live in a Community Property State
Nine states follow community property rules: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska lets couples opt in by written agreement.2Internal Revenue Service. IRS IRM 25.18.1 Basic Principles of Community Property Law Most assets either spouse earns or acquires during the marriage belong equally to both, regardless of whose name is on title. Property one spouse owned before the marriage, or received as a gift or inheritance, stays separate as long as it isn’t mixed with community funds.
In a divorce, the starting point in most community property states is a 50/50 split.3Justia. Community Property vs. Equitable Distribution in Property Division Law At death, each spouse can leave their half to anyone through a will. Community property also carries a meaningful tax advantage: when one spouse dies, the entire property (not just the deceased spouse’s half) receives a stepped-up basis to its current fair market value.4Internal Revenue Service. Publication 555 (12/2024), Community Property That full step-up can dramatically cut capital gains taxes if the surviving spouse later sells.
Community Property With Right of Survivorship
Arizona, California, Nevada, Texas, Washington, and Wisconsin let couples add a right of survivorship to their community property title. This hybrid gives you the tax benefits of community property, including the full stepped-up basis, while letting the property pass directly to the surviving spouse without probate. If your goal is to keep things simple for a surviving spouse in a community property state, this option is worth a conversation with a real estate attorney. The exact language on the deed varies by state, and getting it wrong can mean the survivorship feature doesn’t hold up.
How Title Affects Your Taxes
Title choice affects taxes in ways that aren’t obvious at purchase but matter at sale or death.
Married couples filing jointly can exclude up to $500,000 of capital gain on the sale of a primary residence, compared to $250,000 for a single filer, provided both spouses used the home as a primary residence for at least two of the five years before the sale.5Internal Revenue Service. Topic No. 701, Sale of Your Home Title form doesn’t change the exclusion amount. It does change the stepped-up basis at death. Community property gets a full step-up on both halves when one spouse dies. Joint tenancy and tenancy in common in common law states step up only the deceased spouse’s portion.4Internal Revenue Service. Publication 555 (12/2024), Community Property For a home that has appreciated by $600,000, the difference between a full and a half step-up can mean tens of thousands in avoidable capital gains taxes if the survivor sells.
Transferring title between spouses, whether adding a spouse to a deed or moving property into joint names, triggers no federal income tax. Federal law treats transfers between spouses as gifts with no recognized gain or loss, and the receiving spouse takes over the transferring spouse’s cost basis.6Office of the Law Revision Counsel. 26 U.S. Code 1041 – Transfers of Property Between Spouses or Incident to Divorce Gifts between U.S. citizen spouses also qualify for an unlimited marital deduction, so there’s no gift tax return to file.7Office of the Law Revision Counsel. 26 U.S. Code 2523 – Gift to Spouse The unlimited deduction does not apply if your spouse is not a U.S. citizen; a lower annual limit applies and larger transfers require Form 709.
Federal Tax Liens by Title Form
The IRS is treated differently from private creditors, and the rules turn on how you hold title.
With joint tenancy, a federal tax lien attaches to the delinquent spouse’s share. If the IRS enforces the lien and sells that interest, most states treat the joint tenancy as converted to a tenancy in common. If the delinquent spouse dies first, the lien generally drops off and the survivor takes the property clean, because the deceased spouse’s interest ceased to exist at death.8Internal Revenue Service. IRS IRM 5.17.2 Federal Tax Liens Wisconsin and Connecticut are noted exceptions where the lien can survive and follow the property to the survivor.
With tenancy by the entirety, the IRS can reach the delinquent spouse’s half-interest despite the state-law protections that block private creditors.1Internal Revenue Service. Notice 2003-60 The same death-order rule applies: if the spouse who owes the taxes dies first, the lien disappears. If the non-delinquent spouse dies first, the property becomes solely owned by the taxpayer, and the lien attaches to the whole property.
With tenancy in common, the lien attaches to the delinquent spouse’s share and survives their death, because that share passes through their estate rather than evaporating.
Changing How You Hold Title
Whether you’re adding a spouse to a deed, removing one, or changing the form of ownership, the process involves recording a new deed with your county. A quitclaim deed is the most commonly used instrument for transfers between spouses because it’s simpler than a warranty deed, though it doesn’t guarantee the grantor actually owns anything; it just releases whatever interest the grantor has. Between spouses who already know the ownership history, that’s usually fine. County recording fees and notary fees are modest, and many states exempt transfers between spouses from transfer tax. Paying a real estate attorney to draft the deed correctly is worth the fee, because the wrong language can destroy a right of survivorship or create an unintended tenancy in common.
If you’re worried that adding your spouse to the title will trigger a due-on-sale clause in your mortgage, federal law protects you. The Garn-St. Germain Act prohibits lenders from accelerating a loan when a spouse or child becomes a co-owner, and the same protection covers transfers resulting from a divorce decree or separation agreement.9Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions Adding your spouse to the deed doesn’t put them on the mortgage, though. They gain an ownership interest but don’t become responsible for the loan payments unless they separately sign onto the mortgage with the lender.
Existing title insurance policies generally stay in effect when you add a spouse to the deed, so you don’t need to buy a new policy for a simple interspousal transfer. If you later move the property into an entity you don’t fully control, such as an LLC with outside members, the policy may need to be updated or replaced.