Does Georgia Recognize Tenancy by the Entirety?

Georgia does not recognize tenancy by the entirety. The state abandoned the common-law fiction that treats a married couple as one legal person, so the ownership form that shields a home from one spouse’s creditors in about half the country is not available here. Georgia couples who want the closest equivalent use joint tenancy with right of survivorship, which passes the property automatically to the surviving spouse but does not carry the same creditor protection.

Why the Doctrine No Longer Exists in Georgia

Tenancy by the entirety rested on the idea that husband and wife were a single person at law. Neither could sell or encumber the property alone, and a creditor of only one spouse generally could not reach it. Georgia moved away from that framework long ago. In Sams v. McDonald, the Georgia Court of Appeals held that because spouses are no longer treated as one person under Georgia law, the tenancy-by-the-entirety label has “largely lost its relevancy.”¹ A deed drafted to create a tenancy by the entirety in Georgia will be read as whatever interest its actual language supports under current statutes. The legislature has never revived the doctrine.

What You Get by Default: Tenancy in Common

When two people take title in Georgia and the deed says nothing about survivorship, they own the property as tenants in common. O.C.G.A. § 44-6-190 provides that any instrument of title in favor of multiple people “shall be construed to create interests in common without survivorship” unless it uses one of several specific phrases.² Shares are presumed equal unless the deed says otherwise.³

The consequence catches many couples off guard. If one spouse dies while property is held as tenants in common, the deceased spouse’s share goes through probate and passes under the will or, if there is no will, under Georgia’s intestacy rules. It does not automatically go to the surviving spouse. A deed that reads only “to John Smith and Jane Smith, husband and wife” creates a tenancy in common, because none of the statutory survivorship phrases appear.

Creating a Joint Tenancy With Right of Survivorship

To get the survivorship result that tenancy by the entirety would have provided, the deed must use explicit survivorship language. O.C.G.A. § 44-6-190 accepts any of the following in the granting or habendum clause:

Joint tenants
Joint tenants and not as tenants in common
Joint tenants with survivorship
Jointly with survivorship

The statute also accepts “language essentially the same” as any of those phrases, and it lets a sole owner convey property to themselves and one or more other people as joint tenants. That means an existing owner can add a spouse to the title with survivorship rights through a new deed.² Title examiners look for these specific words. Without them, the property is legally divisible and subject to probate at the first death.

How Survivorship Plays Out at Death

When property is held as joint tenants with right of survivorship and one owner dies, the deceased owner’s interest vanishes. It does not pass through a will, does not enter probate, and cannot be redirected by the deceased spouse’s estate plan. The surviving owner becomes sole owner by operation of law. That result is simple and fast, but it is also rigid. Neither spouse can use a will to leave their share to children from a prior marriage or to anyone else, because there is no share to leave once death occurs. Couples who need that flexibility usually pair a tenancy in common with a will or a trust instead.

Fixing a Deed That Lacks the Right Words

If a couple already holds title as tenants in common and wants survivorship, the correction is a new deed. A quitclaim deed from both spouses to themselves “as joint tenants with right of survivorship” works, and the statute does not require any separate administrative process. Record the new deed with the clerk of superior court in the county where the property sits. Recording fees are modest. The real risk is doing nothing and discovering the gap only after one spouse has died, when the survivor is facing probate on what they thought was their home outright.

What About Protection From Creditors

This is the place the absence of tenancy by the entirety hurts most. In states that recognize it, a creditor of only one spouse usually cannot reach the couple’s home at all. Georgia offers no equivalent blanket shield for jointly held property.

Under O.C.G.A. § 9-12-86, a judgment becomes a lien on real property once it is recorded in the office of the clerk of superior court in the county where the property is located.⁴ The lien attaches to whatever interest the debtor spouse holds. The non-debtor spouse’s interest is not directly encumbered, but the impact on a shared home can still be severe.

Joint tenancy does offer one partial shield. If the debtor spouse dies first, the surviving spouse takes sole ownership, and the interest the lien attached to ceases to exist. The Georgia Supreme Court in Biggers v. Crook held that even a deed to secure debt executed by one joint tenant does not sever the joint tenancy, so at the debtor’s death the surviving co-tenant took the property free of that encumbrance.⁵ The reverse is also true: if the non-debtor spouse dies first, the debtor becomes sole owner and the creditor can pursue the entire property.

The Homestead Exemption

Georgia law protects a portion of home equity from creditors in bankruptcy. Through June 30, 2026, the exemption covers up to $21,500 in equity for an individual debtor, or up to $43,000 when title is held by one spouse and the home is the primary residence for both. Effective July 1, 2026, those amounts rise to $50,000 for an individual and $100,000 for a married debtor whose spouse also resides in the home.⁶ Couples with equity above those figures remain exposed.

How a Joint Tenancy Ends

A Georgia joint tenancy with right of survivorship can be severed unilaterally. Under O.C.G.A. § 44-6-190, any joint tenant may sever it “by the recording of an instrument which results in his or her lifetime transfer of all or a part of his or her interest.”² One spouse can record a deed transferring their interest to themselves as a tenant in common, and the survivorship right is destroyed without the other spouse’s agreement. Once severed, each share goes through its owner’s estate at death. The statute includes one safeguard: if all joint tenants join in the same recorded transfer, no severance occurs, which keeps a routine refinancing or sale from accidentally destroying the arrangement.

Divorce Does Not End It Automatically

A final divorce decree in Georgia does not automatically sever a joint tenancy with right of survivorship. If the divorce order says nothing about the property, the survivorship stays in place and an ex-spouse would still inherit if the other died. O.C.G.A. § 44-6-190 gives two ways to end that result. The divorce order itself can dispose of the property, which terminates the joint tenancy. Alternatively, if the order is silent, either former spouse can file an affidavit in the real property records of the county where the property sits, stating that the parties have been divorced or their marriage annulled, declaring the intent to terminate the joint tenancy, identifying the book and page of the original deed, attaching a copy of the divorce or annulment order, and including a legal description of the property.² Filing the affidavit converts the joint tenancy into a tenancy in common. Georgia follows equitable distribution in divorce, so how the home itself gets divided depends on financial contributions, length of the marriage, and each spouse’s earning capacity, but the affidavit is what clears the survivorship from the public record if the judge’s order did not do so explicitly.