California law allows joint tenants to sever the joint tenancy so their interest will pass under the laws of probate, meaning their partial interest in real estate will go to their heirs, e.g., their spouse or children. In fact, when a joint tenant in California dies, their interest in California real estate becomes owned by the remaining co-owners. In other words, their interest evaporates unless it is severed, thereby creating tenancy in common.
Joint Tenancy Under California Law
Specifically, California law is that: “The principal characteristic of joint tenancy is the right of survivorship.” Estate of Propst (1990) 50 Cal.3d 448, 455. Miller & Starr explains under the heading “Principal characteristic of a joint tenancy” that: “The right of survivorship is the single most important feature of a joint tenancy that distinguishes it from all other forms of cotenancy, except community property with right of survivorship.” Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.
California Jurisprudence explains that “when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant. Nothing ‘passes’ from the deceased joint tenant to the survivor, who rather takes from the instrument by which the joint tenancy was created.” 16 Cal. Jur. 3d Cotenancy and Joint Ownership § 10 (citing and quoting Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317).
Miller & Starr also explains that: “When one joint tenant dies, the entire estate automatically belongs to the surviving joint tenant(s)… The interest of the deceased joint tenant passes to the surviving joint tenant or tenants by operation of law.” Characteristics; creation—Right of
survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.
Miller & Starr doubles down on this explanation of joint tenancy under the heading “No right
to dispose by will,” stating that: “On death, the interest of the deceased joint tenant is not a part of his or her estate and does not pass to heirs or devisees. He or she cannot dispose of it by will, and heirs acquire no interest or estate in the property because the deceased joint tenant had no estate to pass.” Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.
Miller & Starr cites to the recent opinion in Pearce v. Briggs (2021) 68 Cal.App.5th 466, 477,
which cited case law that “an interest in a joint tenancy cannot be devised by will” meaning that
“property held in joint tenancy is not subject to administration in the decedent’s estate.”
Accordingly, California law expressly allows co-owners to sever the joint tenancy.
Deed to Sever Joint Tenancy Under California Law
We have provided a draft form template deed to sever joint tenancy to be used only with the advice and counsel of a partition lawyer in California.
Warning: Do NOT name any co-owners as the grantee (recipient) after the statement “hereby REMISE(S), RELEASE(S) AND QUITCLAIM(S) all of grantors interest in the subject property to….” Listing anyone other than the grantor can give rise to an argument that grantor was intending to transfer part of their interest in the property to that co-owner. Said another way, if the co-owners hold the property 50/50 as joint tenants, a deed from one co-owner to both co-owners could be interpreted as meaning it is now owned 25% by one co-owner and 75% by the other co-owner.
Additionally, joint tenancy severance after death is limited by law and can cause issues if not executed correctly.
| RECORDING REQUESTED BY, MAIL TAX STATEMENTS AND WHEN RECORDED MAIL TO: [YOUR NAME HERE] APN: [APN HERE] | |
| SPACE ABOVE THIS LINE IS FOR RECORDER’S USE | |
| R&T 11911 •• This conveyance changes the manner in which title is held;grantor and grantee remain the same and continue to hold the same proportionate interest. QUITCLAIM DEED TO SEVER JOINT TENANCY | |
| THE UNDERSIGNED GRANTOR(S) DECLARE(S): | DOCUMENTARY TRANSFER TAX IS $__________________________ _____ Computed on full value of property conveyed, or _____ Computed on full value less liens and encumbrances remaining at time of sale. _____ Unincorporated area _____ City of _______________________________ |
For valuable consideration, receipt of which is hereby acknowledged, [NAME OF GRANTEE LOOKING TO SEVER JOINT TENANCY – DO NOT INCLUDE THE OTHER GRANTEE’S INFORMATION] as a Joint Tenant pursuant to the deed recorded on [DATE] as Instrument No. [LIST INSTRUMENT NUMBER] in the Official Records of [NAME OF COUNTY] County.
hereby REMISE(S), RELEASE(S) AND QUITCLAIM(S) all of grantor’s interest in the subject property to [YOUR NAME HERE] as a tenant in common.
the real property situated in the County of [COUNTY], State of California, more particularly described as follows: [PROPERTY LEGAL DESCRIPTION HERE]
More commonly known as: [ADDRESS HERE]
Assessor’s Parcel Number: [APN HERE]
Dated: ___________________________ [NOTARIZED SIGNATURE]__________________
[TYPED NAME HERE]
** Pursuant to Cal. Civil Code Section 683.2(a)(2), a joint tenant may sever a joint tenancy in real property as to the joint tenant’s interest by execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee. It is Grantor’s intention to sever the joint tenancy of the above-referenced property.
Document provided by TalkovLaw.com. Always consult a partition attorney in California before severing the joint tenancy.
[Notary Acknowledgment]
Deed to Sever Joint Tenancy in Microsoft Word
To assist California real estate and partition lawyers, we have provided the deed to sever joint tenancy in Microsoft Word format.
Contact an Experienced Joint Tenancy Dispute Attorney in California
Many times, parties seeking to sever the joint tenancy have other issues with their co-ownership. Sometimes, it is best to end the co-ownership entirely by filing a partition action in California. For a free consultation with an experienced partition lawyer, contact us online or call us at (844) 4-TALKOV (825568).
