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Q: divorce--keeping property in both names ( Answered,   1 Comment )
Subject: divorce--keeping property in both names
Category: Relationships and Society > Law
Asked by: cecilsmith-ga
List Price: $10.00
Posted: 10 Sep 2002 12:09 PDT
Expires: 10 Oct 2002 12:09 PDT
Question ID: 63539
I live in California.
My wife and I own our home under title of "Husband and Wife as joint
As I understand it, such title in California has right of survivorship
upon death of one or the other, the property automatically passes to
survivor without tax or probate.
My wife and I have both agreed that we do not want to sell the house
or to
change the property title. We want to keep the house as is and keep
the current
title as is.
My question is this:
(1)Can we continue to keep the house and title as is(husband and wife
as joint tenants) even though we are divorced and no longer husband
and wife.
(2) And will the right of survivorship still exist with no taxes and
as stated above into the future even though we are divorced, and would
be any time limit.
Subject: Re: divorce--keeping property in both names
Answered By: weisstho-ga on 23 Sep 2002 20:41 PDT
Dear Cecil,

The answer to your question is that yes, you can continue to keep the
house and title as is.

The California Court of Appeal had a case with a scenario very similar
to your own in the case of “Estate of Layton”, 44 Cal. App. 4th 1337;
52 Cal. Rptr. 2d 251 (Court of Appeal of California, Sixth Appellate
District, April 25, 1996).

The law in California does not permit automatic severance of a joint
tenancy, but requires, at the very least, specific words or conduct
that can be construed as being inconsistent with holding title in
joint tenancy.  In your case, where you and your wife are evidencing a
desire to hold title in joint tenancy, there is no severance of that

California law requires that a joint tenancy may be severed by (1) a
unilateral conveyance of the interest to a third party or recordation
of a writing, Cal. Civ. Code,  683.2, (2) an express or implied
agreement of the joint tenants, (3) a judgment, or (4) an execution
sale.  The joint tenancy may also be severed by a court judgment or
order, which must declare or indicate an intent to terminate joint
tenancy status before it can serve to sever a joint tenancy.

If the judgment of divorce is silent on this matter, there is no
severance and your joint tenancy is intact, for now.

BUT, the California Family Code, section 802, holds that property
acquired in joint tenancy during marriage is community does not apply
to property held at death where marriage dissolved more than four
years before), and (2) accepting that the presumption arising from the
joint tenancy form of title should determine the dispute.

 This presumption however can be addressed (rebutted) by the express
or implied agreement of the joint tenants, by you and your ex-wife.  I
WOULD STRONGLY SUGGEST that you have an attorney draw a new deed and
include a clear statement in the deed that the property remains
community property and is subject to a “joint tenancy with rights of

An alternative would be to have a document prepared and filed with the
county clerk – recorder, as to that specific property, making such a
statement. That would preclude the necessity of preparing a new deed
and potentially incurring tax or fee liability.

This extra step is important, since as the California Court of Appeal
has stated: “we recognize that it may be illogical that divorcing
parties, awaiting the court's division of property acquired during
marriage, would envision or desire the operation of joint tenancy
survivorship. An untimely death results in a windfall to the surviving
spouse, a result neither party presumably intends or anticipates."

Since it does seem illogical, you should protect yourself by making
sure that the intent of you and your ex-wife is made crystal clear.

Of course, you really should see an attorney to have the necessary
paperwork created to properly address your rights.

Best of luck,


Search Terms Used:

California Civil Code
Joint Tenancy + California
California Family Code
Subject: Re: divorce--keeping property in both names
From: expertlaw-ga on 13 Sep 2002 09:22 PDT
Your questions are answerable, but require a significant time
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