Problems with Joint Tenants With Right of Survivorship

Question: We want to sell our Sunnyslope home and downsize to a townhouse in central Phoenix. In organizing our paperwork with our listing broker, we learned that our Sunnyslope deed said that we owned our home as “joint tenants with right of survivorship (JTWROS).”  Our listing broker said that we should change this language in our deed now to say, “community property with right of survivorship (CPWROS)” Should we change the language on our deed now?

Answer: Probably. Two or more people, e.g., boyfriend and girlfriend, or three sisters, can own a home as “joint tenants with right of survivorship (JTWROS).” The added language “with right of survivorship” means that, after the death of the first joint tenant, the surviving joint tenant then owns the home individually or, if more than one surviving joint tenant, the surviving joint tenants will own the home together as JTWROS.

Unfortunately, the problem has always been with JTWROS that, if one joint tenant transfers their interest in the home to a third party, e.g., to a child or to a boyfriend, the JTWROS is terminated without any notice to the other JTWROS owners.

This problem of the transfer to a third party of a JTWROS interest in a home without any notice to other JTWROS owners was especially unfair to a surviving spouse. For example, after more than 20 years of marriage, one husband two months before his death recorded a deed of his JTWROS interest in the family home to a cute bartender at a local bar. Only after her husband’s death did the wife learn that she was a 50/50 Tenant-In-Common owner with the cute bartender of the family home.

Thus, in 1995 the Arizona legislature adopted legislation for married couples to be able to take title to a home as CPWROS. If a married couple, then titled their home as CPWROS, there could not be any transfer of any interest in the home without written consent of both spouses. In other words, after the death of the first spouse, the home automatically transferred to the surviving spouse.

Bottom line: Your home could take six months or more to sell, so both of you should immediately execute a CPWROS deed, which a title company may require to close escrow.