[WSBARP] Community Property with Right of Survivorship

[Eric Nelsen]

By the way—if the married couple will hold title with other people, there is a lot of wrangling about whether a deed to “A, an individual, and B and C, a married couple” produces a 50-50 ownership between A and the marital couple, or equal one-third interests between A, B, and C. That issue can also complicate how joint tenancy would work. Joint tenancy can only exist if all owners have equal interests, which would imply that one-third interests is correct if the JT is to operate between B and C. But this is not a well-resolved issue in case law, so far as I’m aware.

See Lyon v. Lyon, 100 Wn.2d 409 (1983). Lyon holds that a joint tenancy with right of survivorship arises between A and the marital community of B and C, when the deed conveyance is to “A and B, as joint tenants with right of survivorship” and B has a pre-existing three-prong community property agreement with C. As a matter of Washington public policy, a community property agreement is favored over joint tenancy, and accordingly upon the death of B, C inherited the entire 50% community interest in the property and the JTWROS was severed by that transfer. Note that this was not a deed to “A and B&C”, but the interaction between a deed to A and B and a CPA between B and C.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Thursday, September 4, 2025 9:58 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Community Property with Right of Survivorship

I think the operative language to create automatic survivorship is “as joint tenants” per RCW 64.28.010. There was a discussion recently on a listerv (maybe not this one) talking about how the phrase “with right of survivorship” technically isn’t necessary under the statute, though everyone seems to include it.

I think you could say “X and Y, husband and wife, as their community property, and as joint tenants with right of survivorship.”

One side note—I think it has been questioned as to whether a joint tenancy can be created unilaterally by a grantor, without direct simultaneous evidence of the grantees’ consent to the joint tenancy. So a conveyance of “Z conveys to X and Y as joint tenants” might not be effective to create joint tenancy between X and Y, unless an acknowledgment is added that says something like “X and Y acknowledge and accept their interests received as joint tenants” and X and Y sign it. (I don’t think notarization is necessary for that part.)

Of course, a deed of “X and Y convey to X and Y as joint tenants” automatically has the consent built in, since the grantees are also the grantors. And under the statute I think “X conveys to X and Y as joint tenants” also works in theory. Frankly, I think the statute was meant to allow joint tenancy to be unilaterally created by a grantor, but I’m not positive it has been interpreted that way. But the safe route I believe is to have simultaneous express consent by all grantees to the joint tenancy.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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 Peter Harman
Sent: Thursday, September 4, 2025 9:03 AM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Community Property with Right of Survivorship

When a Washington married couple wants to own real property as community property with the right of survivorship, is it ever appropriate to use "X and Y, husband and wife, as community property with right of survivorship" as the vesting language?

Or must one say "X and Y, husband and wife, as joint tenants with right of survivorship" and always rely on RCW 64.28.040(1) for the presumption that joint tenancy interests held by a married couple are community property?

Thanks,

Peter Harman, Esq.

Admitted in Oregon, Washington, & California

PO Box 322
Hood River, OR 97031
541-402-1138

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

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