Question: I am going through a divorce. My spouse and I own a house as joint tenants (community property) with right of survivorship. Is it correct that if I die pending a marriage dissolution proceeding my spouse will receive my half of the house?
Answer: Yes, unless you sever your interest in the joint tenancy with right of survivorship.
What does “right of survivorship” mean? It means that if one spouse dies during marriage dissolution (legal separation) proceeding but before entry of judgment terminating marital status the surviving spouse receives 100% of deceased party’s share of a house/condo (any real property).
When a joint tenant dies, his or her interest passes to the surviving tenant by operation of law without probate. Hence, the decedent’s interest doesn’t pass to his/her beneficiaries. A Will or Trust will be ineffective in conveying a joint tenancy interest absent of severance.
By severing the joint tenancy, the spouses will no longer hold title as joint tenants; they will hold title as tenants in common. Only after severing the joint tenancy each spouse will be permitted to transfer their ownership interest to whomever they want.
Pursuant to Civil Code Section 683.2(a), a joint tenant may sever his or her own interest in the joint tenancy, without the consent of the other joint tenants, by doing any of the following:
(1) Execution and delivery of a deed that conveys legal title to the joint tenant’s interest to a third person, whether or not pursuant to an agreement that requires the third person to reconvey legal title to the joint tenant.
(2) Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a written declaration that, as to the interest of the joint tenant, the joint tenancy is severed.
Pursuant to Civil Code Section 683.2(c), the severance isn’t effective until the written instrument is recorded in the county where the property is located.
Civil Code Section 683.2:
Automatic Temporary Restraining Orders (ATROS).
Look at page 2 of the Summons (form FL-110). It contains Automatic Temporary Restraining Orders (ATROS). Both parties are restricted from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal without other party’s written consent.
Nonetheless, a right of survivorship to property can be eliminated, but before doing so, a notice of change must be filed and served on the other party.
Summons (form FL-110): https://www.courts.ca.gov/documents/fl110.pdf
What can you do to sever your own interest in the joint tenancy?
I. Sign a stipulation changing the joint tenancy with right of survivorship to tenancy in common.
II. Or, if opposing counsel or opposing party who is self-represented don’t want to sign a stipulation, then you have to:
a. File a Notice of Severance of Right of Survivorship with the court.
b. Serve a copy of the Notice of Severance of Right of Survivorship on opposing counsel or opposing party if self-represented.
c. Execute a written instrument pursuant to Civil Code Section 683.2(a) and record it pursuant to Section Civil Code 683.2(c)
Remember, if you destroy the joint tenancy with right of survivorship and your spouse dies pending marriage dissolution proceeding but before entry of the judgment terminating marital status you will not inherit his/her interest.
Note, if a spouse dies after entry of judgment terminating marital status then there is no automatic right of survivorship. In this case scenario, the right of survivorship is terminated (severed) by operation of law as a consequence of the entry of judgment terminating marital status.
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