Can I Sell Property That Has My Former Wife on the Deed Without Her Consent?
Full Question:
Answer:
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. This is called a "right of survivorship." State law, which varies by state, controls the creation of a joint tenancy in both real and personal property, such as houses, bank accounts, and corporate stocks. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs.
Each joint tenant has an equal, undivided interest in the whole property. Each joint tenant may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances.
All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. The right of survivorship can be eliminated by ending the joint tenancy before a tenant's death through a process called "severance". Severance means that the joint tenants disrupt the unity of their interests in the property through mutual agreement or unilateral action so that they become tenants in common instead of joint tenants. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
If the spouses are named as tenants in common, it may be more difficult to convey the property without unanimous consent. Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. Any tenant in common may convey his interest in the property without the consent of the other tenants in common. However, each tenant may convey only so much of an interest in the property as that tenant owns. A tenant in common may convey his own interest but not the interest of the other tenants in common.
There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor.
