Dear Trevor:
My late wife and I purchased a home together in 2002 and went on title together as joint tenants. We each have adult children from previous marriages. Sadly, my wife passed away unexpectedly about three months ago and I recently went to talk to an estate attorney about the steps to be taken to handle her estate administration. My step-son called me about a week ago and told me he was interested in selling my home since he was now a 50% owner. My lawyer did a quick title search and seems to believe that my step-son legitimately owns half of MY house now. Can this really be? Is there anything I can do to avoid losing half of my house? -Heartbroken Husband
Dear Heartbroken Husband:
It looks like your attorney could very well be correct, and there may be nothing you can do about it. A joint tenant can indeed sever the right of survivorship WITHOUT the consent of the other joint tenants. What’s even more difficult to believe is that the same is true for spouses who take title as “Community Property with Right of Survivorship“, where the right of survivorship may be terminated pursuant to the same procedures by which a joint tenancy may be severed and without any other special considerations. In order to sever the right of survivorship, a tenant must only record a new deed showing that his or her interest in the title is now held in a “Tenancy-in-Common” or as “Community Property”. With some very limited exceptions, as long as your late wife recorded a deed before she died, and as long as she left her interest by will or trust to your step-son, then your step-son is now the owner of half of your home.
As long as both tenants remain on title as joint tenants, the right of survivorship allows the surviving tenant to receive by operation of law the interest previously held by the now deceased tenant, even if the deceased tenant left his or her interest in the house to someone else by will or trust. However, after one joint tenant severs the right of survivorship, the severing joint tenant will have the legal ability to leave his or her interest in that property to whomever he or she chooses, i.e. his or her children, the neighbor, the President, etc.
Joint tenants can take a proactive step in order to avoid this retirement-busting outcome by signing and recording a Joint Tenancy Agreement (or Community Property with Right of Survivorship Agreement), in which all the tenants agree that no tenant can sever the right of survivorship without the prior written consent of all the other tenants. In fact, the Civil Code states clearly that no severance of the right of survivorship can take place contrary to the terms of a prior written agreement between the tenants.
