Joint Tenancy Severance and Survivorship, 7 Title Checks

Two names on a deed followed by the words joint tenants with right of survivorship look like a settled answer. One owner dies, the survivor holds the whole, and nothing further is required. Frequently that is exactly what happened.

It is also one of the assumptions that most reliably produces a defective closing years later — because a joint tenancy can be broken during life by one owner acting alone, usually without telling anybody, and the instrument that broke it is sitting in the same county index as the deed that created it.

What the deed has to say

Most states require express survivorship language. A conveyance to two people without more creates a tenancy in common in the great majority of jurisdictions, and several states have restricted or abolished the common law joint tenancy unless particular words appear. Between spouses, many states instead recognize tenancy by the entirety, which carries survivorship and, in most of those states, a measure of protection from the separate creditors of one spouse.

The first question is therefore not what the parties intended. It is what the deed says and what that state’s statute makes of those words. Identical language in two states can produce different tenancies and different answers on the creditor question, which is why heirs property and tenancy in common files start with the granting clause rather than the family history.

How a joint tenancy comes apart

• A deed from one joint tenant. A conveyance of one owner’s undivided interest severs as to that interest, leaving a tenancy in common between the grantee and the remaining owners. Most states now let an owner sever by deeding to themselves.
• A mortgage, in some states. In title theory states a mortgage given by one joint tenant can sever the tenancy. In lien theory states it generally does not. The same instrument, the opposite result, depending on where the land sits.
• A contract of sale. An enforceable contract signed by one owner can work an equitable severance in some jurisdictions, well before any deed reaches the recorder.
• A levy and execution sale. A docketed judgment alone usually does not sever, but an execution sale ordinarily does, so the step that matters is not the one most searches stop at.
• A court order. A partition action or a decree dividing marital property ends the joint tenancy by judgment rather than by deed.
• A written agreement between the owners. Recorded in some counties and, unhelpfully, not in others.

Seven checks worth running

1. Read the creating deed in full

The index entry will not show the granting clause, and the granting clause is the whole question. Deed retrieval of the instrument itself, with any recital about how title is held, is step one on every file of this kind.

2. Run each owner separately as a grantor

A search that only follows the parcel, or only the surviving owner, will miss a deed out from the owner who died. Each name needs its own grantor run from the date of the creating deed forward, with spelling and middle initial variants included.

3. Look for a mortgage signed by one owner alone

It is a red flag in every state and a severance in some of them. A mortgage naming one of two owners as borrower is also frequently the first visible sign that the co-owners were not acting together.

4. Search judgments and executions against each owner

The judgment and the execution are separate filings, often in separate places. Establishing which was recorded, and when, is the same name discipline used when locating a debtor’s real property.

5. Check the family law record

A settlement that severed the tenancy is sometimes recorded and sometimes sits only in a divorce file, which is why divorce property division work runs across both. A deed ordered but never signed leaves the record saying one thing and the judgment another.

6. Establish what was recorded after the death

An affidavit of survivorship, a certified death certificate, a termination of joint tenancy, or nothing at all. What was filed, and under whose name it was indexed, decides whether a later searcher will find the death at all.

7. Look at the estate file even where survivorship applies

Survivorship property usually passes outside probate, but the estate file can still hold a claim, an elective share petition, or a lien that reaches the property, and it shows whether anybody contested how title was held.

What an affidavit of survivorship establishes

Less than most people assume. An affidavit is a sworn statement that a named co-owner has died and that the affiant is the survivor. It puts the death into the land records so a later searcher can find it, and in most counties that is its entire function.

What it cannot do is prove the joint tenancy was still intact on the date of death. Nobody executing an affidavit is required to search for a severance, and a severance recorded twenty years earlier does not stop anybody from filing one. An affidavit sitting alongside an unnoticed deed out is how a survivor comes to convey more than they own — the point at which probate research and land record research have to be read together.

Why the creditor question follows the tenancy

How title is held decides what a creditor can reach. A judgment against one joint tenant attaches to that tenant’s interest, and in many states it evaporates if that tenant dies first without an execution sale having occurred. Entireties property in the states that recognize it is frequently beyond the reach of a creditor of one spouse alone.

That makes the tenancy a live issue in elder law and Medicaid planning files, in bankruptcy schedules, and in family law matters where one spouse is exposed to the other’s debts. It is also a legal conclusion rather than a record finding. An abstractor reports the instruments, the language, the dates, and what was indexed against each name. Whether a severance occurred, and what a creditor can reach today, belongs to counsel licensed in that state. An empty index result means nothing was found in the indexes searched rather than that nothing exists, and recording practice differs county by county.

Ordering the abstract behind the opinion

A tenancy question needs the creating deed in full, every instrument recorded against each owner individually from that date forward, and recording data attached to each finding. AFX Research runs in-person searches, certified abstracts, and full document copies from any U.S. county — delivered in 12–72 hours and backed by our search guarantee.

Order a title search naming every owner and every variant of their names, or compare our search products to pick the term that will reach back past the deed that created the tenancy.