Legal Question in Real Estate Law in California

Re: joint tenancy

The first issue to be resolved is whether the supposed transfer of a half-interest from the wife to the husband was indeed effective to transmute a one-half interest from the wife's separate property to the husband's separate property.

Such a transfer of ownership between spouses is called a transmutation, and is authorized by Family Code section 850(c), subject to the requirement that it be "made in writing by an express declaration" (Family Code section 852(a). There are cases holding that a grant deed satisfies the requirement (Estate of Bibb, 2001, 87 Cal.App.4th 461). There are unpublished cases holding that a quitclaim deed, regular in form, will also be sufficient, but such unpublished cases are not "official" can cannot be relied upon. The answer to this first issue is probably found by determining whether the deed used was regular in form and showed wife's intent to give up a half interest by use of words such as "grant" or "quitclaim."

The second issue here seems to be what will become of the property if it is indeed held in joint tenancy now and if there is a divorce. Family Code section 2650 gives the court handling the divorce tha authority, upon the request of either party, to divide the separate-property interests of the spouses in jointly-owned properties, as here. So, what would happen is that the court would take evidence on issue #1 (discussed above) and award the property according to its findings. The divorce would not, in and of itself, terminate the joint tenancy. The property would continue to be held by the ex-spouses as joint tenants. Divorce only terminates community ownership, and the judge would also divide the community property as equally as possible, unless the couple agreed otherwise.

Joint tenancies are frail, and either joint tenant can terminate the joint tenancy by a relatively simple process, after which the former joint tenants are tenants in common. The main difference is there is no right of survivorship. See Civil Code section 683.2 for discussion of how a joint tenancy is severed.

Finally, the term "quick deed" is erroneous. It is "quitclaim deed."

Re: joint tenancy

In a joint tenancy, the parties hold the property equally and share a common interest in it [the so called four elements]. If one owner states clearly that they no longer want to be a joint tenancy, that ends the joint tenancy as to that party and the ownership becomes one of tenants in common. By originally holding it in joint tenancy, the wife probably converted her separate property into either community property or equal separate property for both of them. She essentially made a gift of one half of her interest. So unless there is some basis to void the original gift, she has lost half of it.

A divorce would be an implied ending of the joint tenancy.