How is Joint Tenants with Rights of Survivorship Created and Severed in South Carolina?
How is Joint Tenants with Rights of Survivorship Created and Severed in South Carolina?
One of the key benefits of holding property with someone as joint tenants with rights of survivorship is that when one cotenant dies, his/her share in the property automatically passes to the surviving cotenant(s). The property doesn’t pass through probate and it’s not subject to the decedent’s last will.
This makes joint tenancy with rights of survivorship (JTWROS) a popular choice for married and partnered couples. A common scenario is when one spouse dies, the surviving spouse stays in the home they had shared together, which is what most couples intend.
But JTWROS is no guarantee that this scenario will play out. If the joint tenancy is severed, the surviving cotenant automatically loses his/her rights of survivorship. He/She may even find himself/herself forced out of the home he/she shared for years with his/her partner/cotenant, if a court orders the partition and sale of the property.
That’s exactly what happened to Bradford Q. Jeffcoat, Jr., as described in Williams v Jeffcoat (find it here) which went before the South Carolina Court of Appeals in 2021. It’s an interesting case that delves into how JTWROS can be created and severed in South Carolina. If you currently own, or plan to own, property with another person as joint tenants, you should be aware of the court’s ruling in this case.
Williams v Jeffcoat Background
Jeffcoat and Sandra P. Perkins were domestic partners for twenty years. Together, they owned some real estate in Charleston that they held “jointly with right of survivorship, and not as tenants in common,” as per the deed. They lived there together from 2000 to 2015.
Starting in 2009, Perkins began suffering advanced dementia. By 2015, her condition had deteriorated to the point where Jeffcoat asked Perkins’ only child, Vanessa Williams, for help. Williams cared for her mother and took her back with her to her home in Alabama in June 2015.
Williams petitioned the Alabama Probate Court to appoint her conservator and guardian of her mother, which it did in September 2015. (Perkins had previously made Williams her agent in a durable power of attorney and a health care power of attorney.)
In November, Williams transferred her mother’s one-half interest in the Charleston property to herself in her capacity as her mother’s conservator. She then sought the partition and sale of the property. Her mother died this same month.
Both Williams and Jeffcoat filed motions for summary judgment. The case was heard by a master who granted Williams’ motion for summary judgment in June 2018 compelling the partition and sale of the Charleston property. Jeffcoat appealed.
Two issues were up for review: One was whether the Alabama Probate Court had subject matter jurisdiction to appoint Williams guardian and conservator for her mother; the SC Court of Appeals affirmed that it did. We won’t go into that issue further here, since our focus is joint tenancy with rights of survivorship. The other issue was whether the master erred in granting Williams’ motion for summary judgment compelling partition and sale.
To answer this second issue, the SC Court of Appeals went into detail in its opinion on how JTWROS are created and severed in South Carolina.
Creating Joint Tenancy with Rights of Survivorship in South Carolina
Joint tenancy can be established in SC either through statute or common law, states the SC Court of Appeals in the Williams v Jeffcoat opinion. People or parties that wish to own property together as joint tenants can do so by including the following words in the deed after their names: “as joint tenants with rights of survivorship, and not as tenants in common.” (“Tenants in common” is the other main way to hold property jointly in South Carolina, and there is also a third, less used alternative called “tenants in common with a right of survivorship” which you can read about on our blog here.)
Ending or Severing Joint Tenancy with Rights of Survivorship Under Statute in South Carolina
A joint tenancy with rights of survivorship can be severed in a number of ways under South Carolina law. Here are relevant parts of in SC Code 27-7-40 (and the full text is copied at the bottom of this blog post for reference as well):
(a) In addition to any other methods for the creation of a joint tenancy in real estate which may exist by law, whenever any deed of conveyance of real estate contains the names of the grantees followed by the words “as joint tenants with rights of survivorship, and not as tenants in common” the creation of a joint tenancy with rights of survivorship in the real estate is conclusively deemed to have been created. This joint tenancy includes, and is limited to, the following incidents of ownership:
(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants.
[…]
(v) If real estate is owned by only two joint tenants, a conveyance by one joint tenant to the other joint tenant terminates the joint tenancy and conveys the fee in the real estate to the other joint tenant.
[…]
(vii) Any joint tenancy in real estate held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage and vests the interest in both the parties as tenants in common, unless an order or decree of a court of competent jurisdiction otherwise provides.
(viii) The interest of any joint tenant in a joint tenancy in real estate sold or conveyed by a court of competent jurisdiction where otherwise permitted by law severs the joint tenancy, unless the order or decree of such court otherwise provides and vests title in the parties as tenants in common.
(ix) If real estate is owned by two or more joint tenants, a conveyance by all the joint tenants to themselves as tenants in common severs the joint tenancy and conveys the fee in the real estate to these individuals as tenants in common.
[…]
(c) Except as expressly provided herein, any joint tenancy severed pursuant to the terms of this section is and becomes a tenancy in common without rights of survivorship. Nothing contained in this section shall be construed to create the estate of tenancy by the entireties. Nothing contained in this section amends any statute relating to joint tenancy with rights of survivorship in personal property but affects only real estate. The provisions of this section must be liberally construed to carry out the intentions of the parties. This section supersedes any conflicting provisions of Section 62-2-804.
In short, death, divorce, or sale/conveyance of a joint tenant’s interest in the property are the ways in which a JTWROS can be severed under SC law. The joint tenancy then converts to tenancy in common (if multiple cotenants remain) or sole ownership (if just one owner remains).
The Williams v Jeffcoat Decision Allows JTWROS to be Severed Under Common Law in South Carolina
In South Carolina, JTWROS can also be severed under common law, ruled the SC Court of Appeals in Williams v Jeffcoat.
Jeffcoat argued that SC Code 27-7-40 prohibits one cotenant from conveying his/her interest in the property to a third party, which would mean that the joint tenancy he shared with Perkins was not extinguished and that the master erred in granting Williams’ motion for summary judgment.
If you read the above statute closely, you might have noticed that conveyance of a joint tenant’s interest to a third party was not one of the methods for severing a joint tenancy listed under subsection (a). Furthermore, the last line of subsection (a) states “This joint tenancy includes, and is limited to, the following incidents of ownership” (emphasis added).
The SC Court of Appeals concedes that the statute does contain “limiting language” but finds that this “does not prohibit common law methods of severance but rather addresses the language below detailing a cotenant’s rights in the property upon a cotenant’s death and subsequent to any conveyances between the cotenants themselves.” In its decision, the court stresses the need to interpret language not in isolated phrases but as part of the whole statute and in light of the intent of the General Assembly. The court also relies on precedent set previously by the South Carolina Supreme Court in Smith v Cutler (2005), in which it stated, “Unlike a tenancy in common with a right of survivorship, a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one joint tenant.”
Under common law, the court writes, a JTWROS requires the four unities to be valid: the unities of interest, title, time, and possession. Unity of interest means all joint tenants have an equal interest in the property. Unity of title means all joint tenants are made cotenants and owners by the same document. Unity of time means all joint tenants receive their interest in the property at the same. Unity of possession means all joint tenants have a right of possession of all parts of the property without restriction.
If one of those elements is destroyed, so is the joint tenancy – and the rights of survivorship along with it.
Therefore, under common law, when a cotenant conveys their interest in the property to a third party, the joint tenancy is severed. Williams’ conveyance of her mother’s one-half interest in the Charleston property did sever the joint tenancy and extinguish Jeffcoat’s rights of survivorship, and the SC Court of Appeals affirmed the master’s decision to grant Williams’ motion for summary judgment compelling the partition and sale of the Charleston property.
Note that this is a decision from the South Carolina Court of Appeals, and so there is still a possibility that it could be appealed to the South Carolina Supreme Court.
Protecting Your Interests with Smart Estate Planning
Smart estate planning can help you protect your assets now and ensure that your wishes are carried out once you’re gone. One challenge is to think through all the possible ways things could go wrong in the future and protect against them now. It’s probable that Jeffcoat assumed he would inherit Perkins’ half of the property they shared together, and he never considered the possibility of her interest in the property being conveyed away before her death. Otherwise, he might have been able to take steps to protect against that happening.
For smart estate planning in South Carolina, call estate planning attorney Gem McDowell. He and his team at the Gem McDowell Law Group can help you with important estate planning documents like last wills, trusts, powers of attorney, and more, all tailored to you and your specific circumstances. More importantly, he’s a problem solver who can help you understand difficulties that could arise in the future and what can be done now to avoid them. To schedule a free consultation, call Gem at his office in Mt. Pleasant, SC at 843-284-1021 today.
Addendum: Full Text of SC Code 27-7-40 Creation of joint tenancy; filing; severance
(a) In addition to any other methods for the creation of a joint tenancy in real estate which may exist by law, whenever any deed of conveyance of real estate contains the names of the grantees followed by the words “as joint tenants with rights of survivorship, and not as tenants in common” the creation of a joint tenancy with rights of survivorship in the real estate is conclusively deemed to have been created. This joint tenancy includes, and is limited to, the following incidents of ownership:
(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants.
(ii) In the event of the death of a joint tenant survived by more than one joint tenant in the real estate, the entire interest of the deceased joint tenant vests equally in the surviving joint tenants who continues to own the entire interest owned by them as joint tenants with right of survivorship.
(iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance.
(iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties.
(v) If real estate is owned by only two joint tenants, a conveyance by one joint tenant to the other joint tenant terminates the joint tenancy and conveys the fee in the real estate to the other joint tenant.
(vi) If real estate is owned by more than two joint tenants, a conveyance by one joint tenant to all the other joint tenants therein conveys his interest therein equally to the other joint tenants who continue to own the real estate as joint tenants with right of survivorship.
(vii) Any joint tenancy in real estate held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage and vests the interest in both the parties as tenants in common, unless an order or decree of a court of competent jurisdiction otherwise provides.
(viii) The interest of any joint tenant in a joint tenancy in real estate sold or conveyed by a court of competent jurisdiction where otherwise permitted by law severs the joint tenancy, unless the order or decree of such court otherwise provides and vests title in the parties as tenants in common.
(ix) If real estate is owned by two or more joint tenants, a conveyance by all the joint tenants to themselves as tenants in common severs the joint tenancy and conveys the fee in the real estate to these individuals as tenants in common.
(b) The surviving joint tenant or tenants may, following the death of a joint tenant, file with the Register of Deeds of the county in which the real estate is located a certified copy of the certificate of death of the deceased joint tenant. The fee to be paid to the Register of Deeds for this filing is the same as the fee for the deed of conveyance. The Register of Deeds must index the certificate of death under the name of the deceased joint tenant in the grantor deed index of that office. The filing of the certificate of death is conclusive that the joint tenant is deceased and that the interest of the deceased joint tenant has vested by operation of law in the surviving joint tenant or tenants in the joint tenancy in real estate.
(c) Except as expressly provided herein, any joint tenancy severed pursuant to the terms of this section is and becomes a tenancy in common without rights of survivorship. Nothing contained in this section shall be construed to create the estate of tenancy by the entireties. Nothing contained in this section amends any statute relating to joint tenancy with rights of survivorship in personal property but affects only real estate. The provisions of this section must be liberally construed to carry out the intentions of the parties. This section supersedes any conflicting provisions of Section 62-2-804.
Source: South Carolina Legislature website
