[WSBARP] Deed to husband and wife- JTWROS?

[Eric Nelsen]

Nestor--One would think so, but it still gets litigated/argued about because Borghi says that language in a deed raises no presumption and fails "even [to] provide much evidence." It also matters who the Grantor was in the deed. If it's a deed from a third party to the couple, the third party's insertion of such language, even at the direction of the grantees, is not necessarily sufficient evidence of the couple's intentions or desires. (In such cases I also look to the REET Affidavit signatures to demonstrate that the grantees had consented to the transaction under that deed.)

In Borghi, the deed in question was a Warranty Fulfilment Deed on a RE Contract that the wife had entered into pre-marriage. The contract was paid off during the marriage, and the evidence at trial was that the wife (who had since died) had asked at the time of the fulfilment deed to have her husband's name added. So the Seller/Grantor added his name to hers as Grantees. The court held that was not evidence of intent to convert the separate property to community--it was literally merely evidence of intent to "add his name to title" which is done for many reasons, sentimental and otherwise, that don't amount to intent to convert separate property to community.

Borghi does make clear that a deed between spouses can be evidence of intent--as in "H and W, a married couple, hereby convey to H as his separate property and W as her separate property, as joint tenants with right of survivorship and not as tenants in common and not as community property."

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] On Behalf Of nestor at pplsweb.com
Sent: Tuesday, September 18, 2018 11:14 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

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<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto: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<mailto: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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