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Right of Survivorship Question

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User1996

New member
What is the name of your state? Arizona

Sorry in advance as this might be a confusing question....

Wife and I were legally separated in 2015.That legal separation included a separation of property.

In 2017, we purchased a home together. We currently have about 300K (maybe 250k after realtor and other fees) in equity in the house. Since a legal separation in AZ means we were still legally married, we had the home titled as community property with right of survivorship. We have shared in house payments and other household expenses since then and have overall lived as a married couple would.

Wife filed for divorce in 2023, wanting to convert the legal separation to a divorce. In that 2023, case wife sought different property agreement than the court had ordered in 2015. Her case was not successful, but as part of its ruling, the court noted that any property acquired AFTER the legal separation decree of 2015 was not community property, based on our 2015 separation, which ended community property. Since it was not considered community property, judge could not separate the home unless we agreed on how it would be split.

So we still have a house titled as community property with right of survivorship, but a court ruling that it cannot be community property. Since that ruling, which wife was not happy about, she has threatened to leave her half of the house to someone else, stating it is not community property. I believe (hope?) that even if it is not community property, nothing undoes the right of survivorship part of that title, but wife believes home is titled wrong, and that overrides all aspects of the title.

So my question is this. Does the fact that the title includes right of survivorship hold value? Or if she wills half of it to someone, does that other person get it?
 
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adjusterjack

Senior Member
If she dies?

You mean when.

There is a court order in place that the home is not community property with right of survivorship.

That court order can be enforced by her heirs and you will pay monumental attorney fees fighting them if you wouldn't just pay them their share.

Is your divorce final?

If not, you should address this mess in your decree by either changing the deed to tenants in common, one of you buying the other out, or selling the house and splitting the proceeds.

Continuing this mess post-divorce foolish.
 

User1996

New member
There is a court order in place that the home is not community property with right of survivorship.

That court order can be enforced by her heirs and you will pay monumental attorney fees fighting them if you wouldn't just pay them their share.
The court order states it cannot be community property. It never mentions right of survivorship.

We are legally separated, not divorced.
 

Taxing Matters

Overtaxed Member
Community property only exists while the couple remains married. Once you are divorced it is no longer community property and none of the features of community property remains. It is instead separate property with no right of survivorship unless otherwise ordered by the court or by agreement of the parties. In order for you to have a a right of surviorshiip you first have to be a co-owner of the property. The right of survivorship has to be expressly stated too.

When a coupe divorces, usually they each want a clean separation of property, meaning they end up as sole owner of the property they get in the divorce. Once there is only owner, any right of survivorship ends. So exactly what did the court decide about that property? Did the court decide that you both would remain owners of the property or did the court order that the house goes to just one of you? If the former then the right of survivorship likely remains. But note that even if the right of survivorship remains, she likely can sever the right of survivorship without the need for you to sign off on the change. How that that is done varies by state, but unless Arizona's is different from other states on this there will be at least one way to achieve severing the right of survivorship and there's really nothing you can do to prevent her from taking the steps to do that.

Take the divorce decree order and related documents to an attorney in your state who handles real estate law or divorce law to find out exactly what the state of the title should be. Then get the title updated to reflect that status. That will reduce the potential conflict over who gets what when you die. If it now held as joint tenants with a right of survivorship then either of you can end that. Ask the lawyer how that's done. Then decide if you want to sever the joint survivorship yourself. If you die before she does and the right of survivorship remains, she'll end up as sole owner of it. Is that really what you want?
 

Taxing Matters

Overtaxed Member
The court order states it cannot be community property. It never mentions right of survivorship.
What exactly does the court order say? It would be unusual for the court to just say it's no longer community property. Rather courts typically state what happens to the property rather than what doesn't happen with the property. If it's unclear, get you lawyer to file a motion to rule on the exact state of the title, including whether there is a right of survivorship, before the divorce is final. Then you'll know for sure what the deal is. Just remember, as I said before, that joint survivorship is typically pretty easy to sever. In my experience it's better for the couple to get a clean split of all the property rather than remaining co-owners of anything. Then you each can go your separate ways and not have deal with your ex regarding any of the property.
 

User1996

New member
What exactly does the court order say? It would be unusual for the court to just say it's no longer community property. Rather courts typically state what happens to the property rather than what doesn't happen with the property. If it's unclear, get you lawyer to file a motion to rule on the exact state of the title, including whether there is a right of survivorship, before the divorce is final. Then you'll know for sure what the deal is. Just remember, as I said before, that joint survivorship is typically pretty easy to sever. In my experience it's better for the couple to get a clean split of all the property rather than remaining co-owners of anything. Then you each can go your separate ways and not have deal with your ex regarding any of the property.
We were legally separated in 2015. That separation of property does not address the home in question, which was acquired in 2017.

In the 2023 proceedings to convert the legal separation to divorce, spouse sought different property division than was granted in 2015. She was not granted that. My lawyer requested, and we were granted, summary judgement on property issues that had been already divided by the 2015 separation order. The house, however, was not part of that 2015 separation as we did not own that property in 2015. However, in his order, the judge did note than any property we acquired together after the 2015 separation could not be community property. In the 2017 house purchase, we figured since we were still legally married, the community property with right of survivorship designation was appropriate.

While it cannot be community property, I am not understanding why that would take away the right of survivor designation, as they seem like two separate things.

Also, the 2023 request for divorce was ultimately dismissed by the courts for lack of moving forward. We are still legally separated and legally married with no court proceedings.
 

Foamback

Active Member
Is community property being conflated with JTWROS here unnecessarily? Community property is that which was accumulated during a normal marriage. That is not the case here.
But there is nothing that would disassemble the JTWROS. A JT…. can be between non spousal family members and even business partners who hate each other.

I agree that the JTWROS still stands, and if your wife or ex croaks first, you get the property. Not sure how you or your wife came to believe otherwise. It is well established after decades that JTs are indivisible.

This would require a civil partition case outside of the divorce proceedings
 

adjusterjack

Senior Member
While it cannot be community property, I am not understanding why that would take away the right of survivor designation, as they seem like two separate things.
"Seem" leaves room for a dispute. You believe it's separate, she doesn't. That's what makes lawyers very happy.
 

LdiJ

Senior Member
"Seem" leaves room for a dispute. You believe it's separate, she doesn't. That's what makes lawyers very happy.
Well, in this instance, the judge already agreed that it was not community property so that is not an issue. Clearly they own it jointly, but apparently they own it jointly the way that any two people can own property jointly.

The issue appears to be the "right of survivorship". Again, clearly two unrelated people can own property jointly with the right of survivorship so I would tend to agree with foamback that the right of survivorship remains intact. At the same time, I agree with TM that a right of survivorship can be severed so there is no guarantee that it will remain intact.

Personally, my advice would be to sell the home and split the proceeds and be done with joint ownership.
 

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