Divorce, Death and Joint Tenancy. The divorce decree may control ownership and state the sole owner of the home.

By Ilyce Glink and Samuel J. Tamkin

Q: My grandparents had a less than ideal marriage and a less than peaceful divorce. They both kept the house in their names and never quit claimed their ownership to the other. The way they left it, whoever died first lost the house.

My granny passed away in March of this year. We’re wondering if she is the true owner of the house because she and my mother paid for every single bill, mortgage, utilities, property tax for 12 years. Thank you for reading this and for your time. I am a huge fan of your work.

Joint Tenants with Rights of Survivorship and Divorce

A: If we understand your question, it seems that your grandparents owned a home and held that home as joint tenants with rights of survivorship. When they divorced, they decided that the title to the home would stay as it was and that the second to die would ultimately own the home.

When owners hold title to a home as joint tenants with rights of survivorship and one owner dies, the surviving owner becomes the sole owner of the home. If nothing changed between your grandparents and the home continued to be held by them as joint tenants with rights of survivorship – even after the divorce – your grandfather would now be the sole owner of the home.

Sole Owner of Home, Look to the Divorce Decree

But that isn’t necessarily the final word. Although you say they agreed that the survivor would be the sole owner of the home, is this what their divorce decree says? Sometimes people say certain things while the divorce decree says something else.

For example, we could imagine that the home was actually given to your grandmother in the divorce settlement with the provision that your grandfather deed his interest in the home to her.

Outside of the settlement, he and your grandmother decided they didn’t need or want to go to an attorney to draft the papers to put the title into your grandmother’s name. But in this situation, the divorce decree may control ownership and your grandmother might have had the legal right to be the sole owner of the home. When she died, the property would then stay in her estate instead of being transferred into your grandfather’s name.

Paying Expenses of Property doesn’t make you the Owner

Now, let’s turn to the expenses your mom and grandmother paid over the years. Although you say they paid all of the expenses of the property, that doesn’t automatically make either of them the owner of the home. Even if they paid the real estate taxes.

So, go back to the divorce decree. If the divorce decree doesn’t mention the home, then the arrangement between your grandparents may take precedence: your grandmother and mom would live in the house and pay all of the expenses, and the last to die (between your grandmother and grandfather) would get the property. If this was the agreement, and there’s no paperwork to contradict it, then it seems to us that your grandfather would now be the sole owner of the home.

Consult with a Family Attorney

Speaking of your grandfather, what’s your mom’s relationship with him? What would your mother do if she inherits the property from your grandmother? Did your grandmother have a will naming your mother as heir?

What would your grandfather do if he, in fact, owns the home. One possibility is he may continue to allow the current arrangement to continue: You and your mom would continue to live in the home and pay all of the expenses.

Reading between the lines, it appears that your mother and her father don’t have a close relationship. So, start by finding your grandparents’ divorce decree and seeing what it says. Consult with a family attorney to understand the various possibilities and what options your mother has. Then, your mother should connect with her father to discuss the future of the property.

Financially better to Inherit than Receive Property as Gift

You don’t know how your grandfather will feel about the property after a dozen years. He might want to sell the property and pocket the profits. If that’s the case, perhaps your mother could buy the home directly from him. Or, he might have moved on with his life and would be fine having your mother continue to pay expenses and inherit the property after he dies. Or, perhaps he’ll give it to her now, although we think that given the length of family ownership, it would be better for her financially to inherit it rather than receive it as a gift.

But, if their relationship is tenuous or non-existent, getting the property transferred into her name now might be worth any amount of time and expense to remove any worry she has about losing her home.

Good luck. ©2022 by Ilyce Glink and Samuel J. Tamkin.