by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.
Question: My husband and I purchased our home in Phoenix forty years ago. After he died three months ago, I learned that he had been having an affair with a lady in his office for almost ten years. In fact, not only did he transfer two of our bank accounts to her, he also gave her a deed to our home. Our probate attorney now says that because we had owned our home as Joint Tenants with Right of Survivorship, his lady friend now owns our home fifty-fifty with me. After both my husband and I have owned our home for forty years, how can my husband transfer one-half of our home without my consent or even my knowledge?
Answer: Unfortunately, your situation is not unusual as I receive similar letters occasionally from surviving spouses, usually wives. The law is clear but harsh. If a home or other property is owned as Joint Tenants with Right of Survivorship (” JTWROS”), any joint tenant can convey or encumber his/her joint tenancy interest without the knowledge or consent of the other joint tenant (or joint tenants). End of story. On the other hand, if a home or other real property is owned by a husband and wife as Community Property with Right of Survivorship (” CPWROS”), both spouses must consent to any transfer of an interest in the home or other real property. Inasmuch as the ability of a husband and wife to own a home or other real property as CPWROS only became available in Arizona ten years ago, JTWROS was the only option for you and your husband forty years ago if you wanted the surviving spouse to own the home. Therefore, you probably now own the home as fifty-fifty tenants in common with your husband’s lady friend.
Note: In addition to the requirement of the consent of both spouses, CPWROS has tax advantages over ownership of a home or other real property by a husband and wife as JTWROS.