Our Disso is Final But We Never Changed the JOINT TENANCY DEEDS. My Ex Just DIED.

Q. I just found out that my ex-partner passed away last week. Our partnership disso became final six months ago. We had agreed to hold some commercial property jointly until the real estate market improved, and then to sell it and divide what we netted. They were held in "joint tenancy" and that was never changed. Does this mean I now inherit his share?

A. Probably not, but read on. I talk about this in my last blog about title to property held as "Community Property" and describe "rights of survivorship". But this raises a point that might be useful for you or someone out there - it is not all that uncommon, especially these days, that people agree to continue to jointly own real estate hoping the market is better down the road when they will finally sell. Sometimes they'd actually prefer that their former domestic partner or spouse inherit their share if they die first, before the property is sold especially when there are no children or when adult children have been disinherited.

However, it is not enough that a Judgment, Stipulated Judgment, or Settlement or Termination Agreement say "we will continue to hold the property jointly after the divorce is final and will agree to sell it later (or maybe after a specific time period)" to preserve a joint tenancy interest and its chief attribute - a right of survivorship. This is because without more once the domestic partner (or marital) status is terminated, all joint tenancies that existed prior to that point become tenancies in common as a matter of law. California Probate Code section 5601. Tenancies in common do not contain any survivorship rights.

There is a big "however", however. Section 5601(b) has two exceptions that might help you: (1) Where the joint tenancy is not subject to severance at the time of death, possibly where a written agreement specifically says so (as in a settlement agreement filed with the Court or (2) there is "clear and convincing" evidence that the person who died intended the preserve the joint tenancy in favor of the former partner or spouse.

Hence, where anybody intends to preserve joint tenancy status they should specifically say so in a written document, preferably as part of the Judgment. I always reference the Probate Code section itself. Or, there may be something else that is sufficient to cause the Probate Court to find no severance was intended. My bet is that if there were no other heirs at law for the deceased party, the court would be more easily convinced to find in your favor then if there are surviving children or other family left.

Notice that under the statute the outcome would be different if the Judgment was a decree of legal separation instead.

T.W. Arnold