This is the sixth episode of our new video series covering the right of survivorship among co-owners.

The prior episode covers the community property presumption.

A co-owner’s unilateral severance

Every co-owner vested as a joint tenant or as community property with the right of survivorship has the right to unilaterally sever the right of survivorship. The severance by a co-owner terminates the right of survivorship in that co-owner’s interest.

The separate or community property nature of the co-owner’s interest in the property remains the same after severing the right of survivorship from the co-owner’s interest.

A co-owner unilaterally severing their right of survivorship is not required to first give notice or seek consent from the other co-owner(s).

To sever the vesting, the co-owner prepares and signs a deed from themselves “as a joint tenant” or “as community property with right of survivorship” back to themselves.

On recording the deed, the right of survivorship is severed by having merely revested the co-owner’s interest. The deed revesting title is to include a statement noting the transfer is intended to sever the prior vesting.

Recording requirement for severance

Recording is necessary to terminate another joint tenant’s right of survivorship.

The unilateral severance of a joint tenant’s interest needs to either be:

  • recorded in the county where the property is located before the death of the severing joint tenant; or
  • recorded within seven days after the joint tenant’s death when executed and notarized within three days before the joint tenant’s death.

Additionally, the joint tenancy may be severed by agreement of the joint tenants. When a written agreement to sever the joint tenancy is signed by all the joint tenants, recording or notarization is not required.

All the preceding rules for recording a severance apply fully to the severance deed of a spouse seeking to terminate the right of survivorship held under the community property vesting.

The unilateral severance of a joint tenancy terminates the right of survivorship. Without the existence of the right of survivorship, each co-owner disposes of their interest in the property on death as they wish, such as by will or inter vivos trust, or by the severance itself.

Although the sale of a joint tenant’s separate property interest in real estate severs the joint tenancy, a lease or encumbrance of the property by a joint tenant does not.

All the procedures for severing a joint tenancy are fully available for a married couple to sever the community property vesting which includes the right of survivorship.

Editor’s note – Stay tuned for further coverage on this topic.