By definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in a property to automatically pass to the surviving joint tenant(s). If the interest is transferred to a third party, a joint tenancy will be severed and convert into a tenancy in common, another type of co-ownership in California. This issue commonly arises in California partition actions along with other areas of family law and trust and estate law.
However, the law imposes certain requirements on severing a joint tenancy to ensure that joint tenants do not play games with the survivorship element of the joint tenancy. These rules require that the document severing the joint tenancy, usually a deed, is recorded during the lifetime of the non-surviving joint tenant.
If there were no rules requiring that the document severing the joint tenancy be recorded, a joint tenant could hand a deed to the property to their grantee (e.g., an heir, such as a child) and tell them to place it in a drawer then tell the grantee to record the deed only if that joint tenant dies before their other joint tenant(s). In this scenario, the joint tenant would evade the detriment of their estate losing an interest in the property upon their death.
Conversely, that joint tenant could tell their grantee to throw that deed in the trash if the joint tenant outlives the other joint tenant. In that scenario, the joint tenant would then become the full owner, thereby gaining the benefits of joint tenancy without having suffered the detriment of losing their interest had they died first.
California law has solved this problem by requiring all documents severing a joint tenancy to be recorded during the lifetime of the severing joint tenant or recorded within 7 days after the death of the joint tenant provided the severance was executed within 3 days before their death, i.e., a deathbed will.
This requirement is found in California Civil Code § 683.2 requires written evidence of the intention to sever the joint interest (usually a deed from the joint tenant to themselves as a tenant in common) signed by that joint tenant so long as one of the following two circumstances applies:
(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.
California Civil Code § 683.2(c).
As one secondary source explains: “If the client’s decision to sever the joint tenancy is final, good practice requires prompt recordation of the severance. Otherwise, the attorney bears the risk of the severing client’s untimely death.”1 Cal. Transactions Forms–Est. Planning § 1:21
What this means is that an instrument unilaterally severing a joint tenancy with right of survivorship is not effective unless it is executed and notarized no earlier than three days before a deceased joint tenant’s death and recorded in the county where the property is located no longer than seven days after the death of this deceased joint tenant. Failure to meet one or both of these timelines will result in execution and/or recordation of an invalid deed. An invalid deed is insufficient to terminate a joint tenancy and a right of survivorship.
For example, in Dorn v. Solomon (1997) 57 Cal. App. 4th 650, 651, a widower who held property as “husband and wife, as joint tenants,” filed suit seeking declaratory relief and cancellation of a quitclaim deed as a result of the decedent spouse having “executed a quitclaim deed purporting to transfer the family home” where the defendant “did not record the deed until a month after [the decedent spouse] died….” Noting that “subdivision (c)(2) of section 683.2 explicitly provides that the deed must be recorded ‘not later than seven days after the death of the severing joint tenant,’” the court found that the deed “was invalid under this section.”
Furthermore, a joint tenancy cannot be terminated by a will. Rather: “A will that purports to terminate a joint tenancy is not an effective severance of the joint tenancy, and the other joint tenant retains the right of survivorship.” Miller & Starr, Methods and effect of termination—Termination by conveyance, 4 Cal. Real Est. (4th ed.) § 11:28 (citing Estate of England (1991) 233 Cal.App. 3d 1, 5–6)
Indeed, without these required timelines, joint tenants would be able to abuse their right of survivorship privileges. They would be able to transfer their interest to a third party, thereby severing the joint tenancy, but tell the third party to hold that deed. Then, if the joint tenant who gifted their interest to the third party dies first, the surviving joint tenant could rip up the deed, obtain the deceased joint tenant’s interest by way of rights of survivorship, and the third party would be left with nothing.
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