[WSBARP] Community Property with Right of Survivorship

[Mark Anderson]

I am interested in Eric's comment regarding creation of a joint tenancy by (what I presume is) a single grantor without the consent of the grantee.  Could you address what might seem to be an analogous situation in which a single grantor executes a quitclaim deed in favor of a single grantee?  Do you seek the grantee’s consent?  If not, what if the grantee doesn't want the property?

Mark B. Anderson
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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

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