Words Matter – Holding Title as Tenants by the Entirety

The statutory framework under the Illinois Joint Tenancy Act (765 ILCS 1005/) establishes tenancy in common as the default form of co-ownership for real property conveyed to two or more persons, including married couples, unless the deed or other instrument expressly declares otherwise (e.g., as joint tenancy or, for married couples and homestead property, tenancy by the entirety). This is outlined in 765 ILCS 1005/1, which requires explicit language to overcome the default, such as “not in tenancy in common but in joint tenancy” for joint tenancy. For tenancy by the entirety, 765 ILCS 1005/1(c) similarly mandates that the instrument must expressly declare the conveyance “to tenants by the entirety” (or equivalent language indicating that intent) for homestead property maintained or intended as such by a husband and wife.

No statutory exceptions exist that alter this default for married couples simply because of their marital status or the property’s use as homestead. Even if a deed identifies the grantees as “husband and wife” without further specification of the tenancy type, it does not create tenancy by the entirety or joint tenancy; the default to tenancy in common prevails. Tenancy by the entirety is available exclusively to married couples for homestead property but is not presumed or automatic—it requires express declaration in the deed.

So therefore, while married couples have the unique option to hold homestead property as tenants by the entirety (providing protections like immunity from certain unilateral creditor actions under 735 ILCS 5/12-112), this is not an exception to the default rule—it must be affirmatively chosen via express deed language. If the deed is silent on vesting type, tenancy in common governs, regardless of marital status or homestead use. No contrary case law interpretations were identified as of the current date.