Q: My brother and I bought a rental house with the understanding that if one of us died, the other would get his half. We had the property titled as “joint tenants with right of survivorship.”
Now my brother wants his half to go to his new wife instead. Can he do this?
A: When a property is owned with someone else you are not married to, you have two choices about how to own the property together.
This choice will decide what happens to the property when you pass away and can affect certain other rights.
The most common way to own property together is called “tenants in common.” This is the default form of owning a property with others, and each owner owns their share of the property outright. If an owner dies, his part of the property will go to his heirs, who will replace him as a co-owner.
However, if the property is owned as “joint tenants with right of survivorship,” and an owner dies, the remaining owners will still own the property, basically absorbing the deceased joint tenant’s ownership rights.
To own property in this way, the “joint tenants with right of survivorship” language will need to be included on the deed. If you do not see those words on your deed, the property is owned as tenants in common.
Any joint tenant can deed their portion of a property to whomever they want.
If any joint tenant transfers the property to someone not already on the deed, all owners automatically become tenants in common. The survivorship feature will disappear, and each owner’s heirs would inherit their portion of the property.
Your brother can have his part go to his wife when he dies by recording an appropriate deed, even without your approval.
While it may be too late to change things this time, there are other ways to own property with more stringent rules, such as using a trust or a limited liability company.
Any time you co-own property with someone you are not married to, you should have a written agreement laying out the rules to avoid situations like this.
Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.