Joint Ownership of a Home after a Divorce: Look to the divorce decree and see what that legal document specified.
By Ilyce Glink and Samuel J. Tamkin
Some comments and observations about a column we recently wrote about divorce, death and joint tenancy. A grandchild wrote about how her grandparents had a difficult marriage and divorce. But even after the divorce, they kept the property in both names. Whoever died first lost the house. But there were some questions about whether the grandmother, who died in March, actually still owned the property because she and our correspondent’s mother paid all of the bills.
Joint Ownership of a Home after a Divorce
COMMENT: I enjoy reading your column on a regular basis. Your recent column about divorce, death and joint tenancy was right on point.
I am a retired attorney and many, many years ago, I had the exact case you described. The only difference was it was a much younger couple and there was a tragic ending. I represented the wife. Though I advised against it, the parties agreed to keep the house in joint tenancy but sell the home immediately after the divorce and divide the proceeds.
Prior to the sale, my former client was tragically murdered. Her heirs sought her share. The case went up on appeal. The Appellate Court ruled in favor based on the transcript I developed where both parties acknowledged their intent to maintain the joint tenancy and split the proceeds upon sale.
The Court relied on that transcript similar to what you suggested the parties do in your column. Good work.
Check to See Statute of a Divorce Severing the Joint Tenancy
COMMENT: Some thoughts regarding your divorce, death and joint tenancy article. In Texas, and maybe other states, by statute a divorce severs the joint tenancy. Ownership of the property is converted and the owners become tenants in common in the absence of decree language.
ILYCE AND SAM RESPOND: Thank you for your kind words. The column you mentioned related to an elderly couple that divorced but decided to keep the home in both their names. They intended that the surviving person would wind up owning the home.
However, the occupant of the home and ex-spouse died 12 years after the divorce. So, the question was whether the family of the occupant ex-spouse could keep the home.
We mentioned in that column that you should look to the divorce decree and see what that legal document specified. And, absent anything said in the divorce decree, their arrangement may hold up and the ex-spouse who no longer lived in the home would likely get the home.
Distinction in Which Married Individuals Can Hold Title to a Home
With regards to the ownership of joint tenancy at the time of divorce, we believe it would be important to note the distinction between the manner in which married individuals can hold title to a home. For expediency, we’ll just address three types: tenants in common, tenancy by the entirety and joint tenants with rights of survivorship.
If they own the home as tenants in common, they could each own a fifty percent interest in the home (or any other combination). One spouse could own 99 percent of the property and the other one percent.With tenants in common, each owner’s share stays with them and upon their death, their heirs would get the percentage of the property that they owned. If they divorce, the divorce decree would decide how to distribute their ownership interests.
When they own property as tenancy by the entirety, they own it as joint tenants with rights of survivorship. But they have certain other rights and protections afforded to married couples that use that home as their primary residence. Upon the death of one spouse, the home goes to the other. Either party can sever that ownership interest by divorce or other action to sever the tenancy. So, upon the filing of the divorce and the home ceasing being a primary residence, the home would revert to tenants in common with each spouse owning a 50 percent share. And, of course, the divorce decree could dictate other terms to their ownership.
Finally, when people own property as joint tenants with rights of survivorship, the home need not be a primary residence, nor do the owners of the home need to be married. But upon the death of one owner, the home automatically goes to the surviving owner.
In some states, like Illinois, the joint tenancy may not be broken due to the divorce. In other states, the filing of the divorce would change the ownership of the parties from joint tenants to tenants in common. We thank everyone that wrote in to have us clarify that situation.
Determine the Laws of the State Relating to Ownership of a Home after Divorce
To elaborate on our column: if the property was owned by the father and mother equally, and each had a 50% interest in the property, the heirs of the mother would become owners of the mother’s share of the home. And, having said this, some states may allow the parties to keep the joint ownership of the home where they specify their agreement is to keep it that way even though they have divorced.
At the end of the day, you’d have to determine what the laws of the state are relating to joint ownership of a home after a divorce, what the parties intended, and what the divorce decree says.
Thank you for your comments.