tenancy by entirety wyoming

Tenancy by Entirety: The Current Estate of “Husband and Wife” in Wyoming

Unlike many states, Wyoming continues to recognize the estate known as a tenancy by entirety. A tenancy by the entirety is a form of property co-ownership held jointly by a husband and wife.  In an estate by the entirety, each spouse is vested with the whole or the entirety through marriage. As such, one spouse cannot transfer or encumber the property without the consent of the other. Additionally, when one spouse dies, the surviving spouse continues to hold the whole by virtue of the original title. The only manner in which to dissolve the estate is through a concurrent act or divorce.

At common law an instrument vesting two spouses as “husband and wife” created a tenancy by the entirety, unless the instrument indicated an alternative intention (i.e. joint tenants). With the evolving state of marriage, tenancy by the entirety has become disfavored. Many states have abandoned the estate or have required more precise language indicating that the parties clearly intended to create a tenancy by the entirety.

In 1963, the Wyoming Supreme Court held that conveyances to parties listed as “husband and wife” created a presumption that the parties intended to create a tenancy by the entirety. Witzel v. Witzel, 386 P.2d 103 (Wyo. 1963).

Recently, the Witzel presumption was brought into question by the United States District Court for the District of Wyoming. United States v. Lain, No.17-CV-113-ABJ, 2019 WL 2051960 (D. Wyo. Feb. 5, 2019). In Lain, the Federal District Court held that the Wyoming Supreme Court and the Wyoming Legislature had altered the Witzel presumption.

First, the Court reasoned that the Witzel presumption did not square with the Wyoming Supreme Court’s decision in Choman v. Epperley, 592 P.2d 714 (Wyo. 1979). There, the Wyoming Supreme Court held that “without the express provision for a joint tenancy, a tenancy in common is presumed.” Id. At 718.

Second, and the stronger argument that the Witzel presumption was no longer controlling, was the plain language of Wyo. Stat. Ann. § 34-1-140 (emphasis added):

A joint tenancy or a tenancy by the entirety as to any interest in real or personal property may be established by the owner thereof, by designating in the instrument of conveyance or transfer, the names of such joint tenants or tenants by the entirety, including his own, without the necessity of any transfer or conveyance to or through a third person.

Id.

Therefore, according to the Federal District Court’s decision in Lain, “the current state of Wyoming law presumed that a conveyance to two individuals that is silent as to the classification of the concurrent estate they hold produces a tenancy in common, and this result is so even if those two individuals are husband and wife.” Lain, WL 2051960, at 8.

In response to the Federal District Court’s decision in Lain, the Wyoming legislature amended Wyo. Stat. Ann. § 34-1-140 by adding subpart (b):

(b) Unless the deed specifies another form of ownership, the designation of tenants on an instrument of conveyance or transfer of real property as “husband and wife,” “spouses” or similar language, shall be deemed to establish a tenancy by the entirety under subsection (a) of this section.

As a result, the Wyoming legislature has effectively codified the common law. No explicit statement of intent to create a tenancy by the entirety is required in Wyoming.  An instrument vesting two spouses as “husband and wife” is enough to create the estate and its attributes.

Written by Sean Belliveau, Senior Attorney at KMD Law