This is the final episode of our new video series covering the right of survivorship among co-owners.
The prior episode covers how a deceased joint tenant’s interest in a property is cleared from title before the surviving joint tenant(s) sells, leases or encumbers the property as the sole owner.
Mechanics of severing the right of survivorship
A spouse can unilaterally sever the joint tenancy and community property with right-of-survivorship vestings by:
- executing and delivering a deed that conveys legal title to a third party;
- executing a deed to themselves;
- executing a written severance of joint tenancy; or
- executing a written instrument that evidences an intent to sever.
Additionally, the community property interest of a spouse who executes a deed to themselves to sever the title and eliminate the right of survivorship remains community property. Community property cannot be transmuted to separate property without the consent of both spouses or a court order.
A severance deed to oneself terminating the right of survivorship is not sufficient by itself to avoid passing the property to the surviving spouse on death for community property vested as either community property with right of survivorship or in joint tenancy.
A will needs to also be prepared or a living trust established naming the person intended to receive the spouse’s community property interest on death.
Otherwise, since it is community property, the property will pass by intestate succession to the surviving spouse as though the severance of the vesting had never occurred.
