How to Take Title in Virginia: Tenants by the Entirety, Joint Tenants and Tenants in Common, and Why the Choice Matters at Closing

Before closing, someone will ask a short question that carries a long consequence: how do you want to take title? The answer goes into the deed, and the deed decides what happens to the house if one owner dies, if the couple divorces, if one owner has a debt, or if the owners want to sell. Whether you are buying in the Fan, Short Pump or Midlothian, Virginia law gives you three common choices, and they work differently.

What the Virginia Code actually says about each form

Joint tenants: survivorship is not the default

Many buyers assume that putting two names on a deed means the survivor automatically inherits. In Virginia, that is not the starting rule. Section 55.1-134 says that when a joint tenant dies, his or her part descends to heirs, passes by will, or goes to the personal representative, as if the person had been a tenant in common. The exception is where the instrument manifestly shows it was intended that the part of the one dying should belong to the others.

Section 55.1-135 turns that into drafting guidance. Property titled in the names of two or more people “jointly,” as “joint tenants,” or in a “joint tenancy” is owned as a joint tenancy without survivorship. If the deed also says “with survivorship,” or equivalent language, it is presumed the owners intend a joint tenancy with the right of survivorship. In other words, the words you choose carry the weight.

Tenants by the entirety: for married couples only

Section 55.1-136 lets spouses own real or personal property as tenants by the entirety for as long as they are married. Designating them as “tenants by the entireties” or “tenants by the entirety” makes the intent that the part of the one dying belongs to the other manifest. The same section says an interest held this way cannot be severed by a written instrument unless it is a deed signed by both spouses as grantors. That is why one spouse cannot quietly convey away the home alone.

Section 55.1-135 adds a trap for married buyers. If property is conveyed to spouses without the language of a joint tenancy or a tenancy by the entirety, and the requirements for that tenancy are not met, the statute says they take by moieties, as if each spouse had received a separate conveyance. A deed that simply names a married couple, with no tenancy language, may not give you what you assumed.

Tenants in common: separate shares, no survivorship

Tenants in common each own a share, which can be equal or unequal, and each share passes to that owner’s heirs or under that owner’s will. This is the form that fits unmarried co-buyers who contribute different amounts, friends who each want their share to go to their own family, or family members buying together. It is also what Section 55.1-134 describes as the result for a plain joint tenancy without survivorship language.

Side by side: death, divorce, creditors and sale

The statutes above settle some rows of the comparison and leave others to case law and your own documents. We mark which is which.

• At death. Tenancy by the entirety: the surviving spouse takes (Section 55.1-136). Joint tenancy with survivorship: the survivor takes if the deed says so (Section 55.1-135). Joint tenancy without survivorship and tenancy in common: the decedent’s share goes to heirs or under the will (Section 55.1-134). If a home is inherited that way, our guide to selling an inherited Richmond home covers what comes next.
• At divorce. Section 55.1-136 states that spouses own as tenants by the entirety only for as long as they are married, so a divorce changes the footing of that ownership. How the home is divided or sold is decided by the divorce, and our post on selling during a divorce explains who signs and who gets paid. Ask your attorney what happens to your specific title.
• Against creditors. Section 55.1-136 treats entirety property that moves into the spouses’ trusts as keeping its immunity from the claims of their separate creditors, so long as they stay married and the property remains theirs. That tells you how the law values the form. The rules for debts owed by both spouses, taxes and other exceptions are beyond what we can summarize safely, so this is a question for your attorney.
• At sale. With entirety property, severing the interest needs a deed signed by both spouses (Section 55.1-136). With other forms, each owner generally has to sign to convey the whole property, and an owner who cannot be present may use a power of attorney, which has its own requirements: see our guide to the power of attorney at a Virginia closing.

What your closing agent will ask, and when

In practice, the title company or settlement attorney that prepares your closing will ask early how each buyer wants to take title, along with each buyer’s full legal name and marital status. They typically need that instruction in writing before the deed is drafted, which is usually days before closing, not at the table. Two cautions:

• Names must match. The names on the deed, the loan and your identification should line up. If you are a co-borrower who will not live in the home, see our guide to co-borrowers and non-occupant co-signers, because being on the loan and being on the deed are separate decisions.
• The deed’s wording controls. A verbal understanding between buyers, or a note in a text thread, does not change what the recorded deed says. Section 55.1-135 depends on the words used in the instrument, so read the draft deed, ask your attorney what the wording means, and correct it before signing.

Title insurance is a separate decision from vesting. It protects against defects in the title you are buying and is explained in our guide to the owner’s title policy. Whether a lender requires or offers a particular policy is something your lender and closing agent will confirm.

Unmarried co-buyers, family and friends

Tenancy by the entirety is not available to two people who are not married, so unmarried buyers generally choose between tenancy in common and a joint tenancy with survivorship. The choice is not only legal. It decides who inherits, what happens if one buyer wants out, and whether a creditor of one owner can reach that owner’s share. Put the buy-out terms, repair costs and mortgage payments into a written co-ownership agreement drafted by an attorney. Our guide to co-buying with family or a friend walks through how to structure that.

Recording the deed, and why timing matters

A signed deed does not protect you until it is recorded. Section 55.1-407 says a deed conveying any estate, and a deed of trust or mortgage, is void as to purchasers for valuable consideration without notice and lien creditors until it is recorded in the county or city where the property is located. That is one reason the closing agent handles recording quickly after funding. The same section requires the clerk to index recorded instruments and to time-stamp those not recorded the day they are delivered.

Recorded deeds are public records. You can look up your own, or a neighbor’s chain of ownership, using the steps in our guide to pulling a deed and plat. The place to look depends on which of the six localities holds the property: the City of Richmond, Henrico, Chesterfield, Hanover, Goochland or Powhatan.

When a trust or later changes enter the picture

Many owners later move the home into a trust or change how title is held after a marriage, divorce or death. Section 55.1-136 itself addresses what happens to entirety property conveyed into spouses’ trusts, which is one reason to plan the vesting and the estate plan together. If you are weighing that, read our guide to selling a home held in a trust, and ask your attorney whether a retitling could affect your loan, your insurance or your title policy before you do it.

Taking title in Virginia: common questions