[WSBARP] Deed to husband and wife- JTWROS?

Tue Sep 18 11:14:16 PDT 2018

Something like this should be clear to overcome the presumption, "Husband,
as separate property and Wife as separate property, as Joint tenants with
the right of survivorship,  not as tenants in common and not community
property".

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Tuesday, September 18, 2018 10:50 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

John--How have title companies decided to reconcile RCW 64.28.020 and
Borghi, 167 Wn.2d 480, 488, 219 P.3d 932 (2009)? There it states (emphasis
added):

We have consistently refused to recognize any presumption arising from
placing legal title in both spouses' names and instead adhered to the
principle that the name on a deed or title does not determine the separate
or community character of the property, or even provide much evidence.
Cross, supra, at 30. As we stated in Merritt v. Newkirk, 155 Wash. 517, 285
P. 442 (1930):

[T]he fact in itself [legal title] is not of controlling moment in
determining which of the spouses is the actual owner of the property.

Under our somewhat perplexing statutes relating to the acquisition of
property, title to real property taken in the name of one of the spouses may
be the separate property of the spouse taking the title, the separate
property of the other spouse, or the community property of both of the
spouses, owing to the source from which the fund is derived which is used in
paying the purchase price of the property.

Id. at 520-21, 285 P. 442 (relying on Deschamps and noting cases in support
" are too numerous to admit of citation here" ). 

The holding is clearly contrary to the statutory mandate of RCW 64.28.020(2)
<http://app.leg.wa.gov/RCW/default.aspx?cite=64.28&full=true#64.28.020> ,
which states "Interests in common held in the names of both spouses or both
domestic partners, whether or not in conjunction with others, are presumed
to be their community property." The 2009 Borghi opinion doesn't mention the
statute and I am guessing it wasn't briefed, even though that subsection was
added to the statute in 1988, Laws 1988 Ch. 29 Sec. 10.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Monday, September 17, 2018 4:59 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

One caveat:  RCW 64.28.020 does create a presumption that property acquired
by the spouses is community property.  So the conveyance must be clear
enough to overcome the presumption if they do not want the title to be
community property.  We usually recommend adding ".and not as tenants in
common and not as community property."

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98467

253-476-5721

j.mccrady at pstitle.com <mailto:j.mccrady at pstitle.com> 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, September 17, 2018 2:38 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

Correct, to create JTWROS with husband and wife you must have deed to them
"as joint tenants with right of survivorship." Merely designating them as
"husband and wife" does not create a right of survivorship. In fact, in most
instances it doesn't even create a presumption that the property is
community property of the spouses--it could still be the separate property
of one of them.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Anessa Novasio
Sent: Monday, September 17, 2018 11:00 AM
To: WSBA Real Property Listserv
Subject: [WSBARP] Deed to husband and wife- JTWROS?

Greetings,

 My understanding is that a deed with the grantees as husband and wife does
not automatically create a joint tenancy with right of survivorship. 

So in order to have a JTWROS one would need a quit claim deed specifying to
X and Y as husband and wife as joint tenants with right if survivorship per
RCW  64.28.010.  Is that correct, or is it enough to say to X and Y as
husband and wife??

Thanks in advance!

Anessa

-- 

Anessa Novasio, Attorney at Law, PLLC

5623 Rainier Ave S

Seattle WA 98118

phone: (425) 954-7570 
fax: (206) 260-9128

www.slidingscalelaw.com <http://www.slidingscalelaw.com> 

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