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“We Have No Prenup”: Rights of Survivorship vs. Tenants in Common in Our Marital Home — What Now?

Let’s be real—most couples jump into buying a home together with excitement, not legal jargon buzzing in their heads. The idea of sharing a place is thrilling, and the last thing on your mind is how the property title is structured. But here’s the catch: how you hold the title can have a huge impact down the road, especially if you don’t have a prenup.

I’ve seen this issue trip up more couples than I can count. Choosing between joint tenancy with rights of survivorship (JTWROS) and tenants in common (TIC) often brings up some tense conversations. At its core, it’s about control, security, and what happens to your biggest shared asset if life throws a curveball.

Joint Tenancy with Rights of Survivorship: A Safety Net or a Risk?

With JTWROS, you and your spouse each own the property equally. If one of you passes away, the other automatically inherits the whole thing—no probate, no fuss. It’s straightforward and often feels like the “right” choice for married couples who want to protect each other and keep things simple.

This setup is especially popular if you don’t have a prenup because it creates an automatic safety net. But it’s not without downsides. For instance, you can’t will your share to anyone else—not your kids from a previous marriage, siblings, or friends. Also, if one spouse runs into debt or financial trouble, creditors might go after the property.

So while JTWROS offers a clean path for ownership transfer, it might box you in if your family or financial situation is more complicated.

Tenants in Common: More Flexibility, More Complexity

TIC means each spouse owns a specific share of the property—usually 50/50, but it can reflect who paid more upfront. When one partner dies, their share goes to whoever they named in their will, not automatically to the other spouse.

It’s a popular choice for blended families or anyone wanting to keep their estate planning flexible. For example, if you want your kids from another relationship to inherit your piece of the home, TIC lets you do that. It’s all about keeping your options open.

That said, TIC can lead to headaches—especially if the relationship sours. Disagreements over repairs, bills, or whether to sell can drag couples into messy disputes. And if one spouse wants out but the other doesn’t, it could force a sale neither wanted.

Why Does This Matter So Much Without a Prenup?

When there’s no prenup, state laws and the way you hold title essentially govern what happens to your home during a divorce or after someone dies. And trust me, divorce rates are high enough that it’s worth planning for.

In some states, especially community property states, things can get even more complicated. You might think you’re protected, but the title you pick could override your expectations. I’ve seen couples blindsided by this—thinking “we’re married, it’s ours,” only to discover the paperwork had a different story.

Can’t Agree? Here’s What to Do

If one of you wants JTWROS and the other prefers TIC, it can stall the whole process. These choices are emotional because they touch on trust, independence, and security. One partner may feel JTWROS shows commitment, while the other sees it as a loss of control.

Some couples find middle ground by choosing TIC but setting up reciprocal wills or life insurance to protect the surviving spouse financially. Others hit a stalemate until they get professional help.

My advice? Don’t do this alone. Talk to a real estate attorney and maybe a financial advisor. You want to understand not just what feels right now, but what could happen 10, 20 years down the line.

Where These Strategies Can Fail

No approach is perfect. JTWROS locks you into a specific path with no wiggle room if you want to leave your share to someone else later or if things change between you two. TIC gives flexibility, but it can open the door to family disputes and forced sales if things get ugly.

Plus, depending on your state, courts can sometimes override your title choices during divorce to make a fair split—adding another layer of uncertainty.

Questions You Should Ask Each Other

• What happens if one of us dies unexpectedly?
• Do we have kids from previous relationships to consider?
• Are either of us at risk of creditors or lawsuits?
• Do we want to avoid probate, or is it not a big deal?
• If we separate, what’s the fairest way to divide the home?

It’s surprising how many couples skip these conversations before signing on the dotted line. And later, these “what ifs” can lead to painful fights or costly legal battles.

My Two Cents

If you’re married without a prenup, it’s worth investing time to understand your options. If your family situation is straightforward, JTWROS might be your best bet for simplicity and peace of mind. But if you have complex family dynamics or want more control over who inherits your share, TIC combined with a solid estate plan can be a smarter move.

The key is to have open, honest talks now—even if it’s uncomfortable. The couples who do this usually avoid headaches later.

Wrapping It Up

How you hold the title to your marital home isn’t just a paperwork detail—it’s a reflection of trust, intention, and planning for the future. Whether you pick rights of survivorship or tenants in common, make sure you’re making a deliberate choice, not just going with the flow.

Get a good attorney involved. Have those tough conversations. Because if you don’t, you might find out too late that “ours” wasn’t as simple as you thought.

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