Madison Wisconsin's Estate Planning Blog

Thursday, January 7, 2021

Severing Joint Ownership of Property

One of the most common forms of property ownership in the United States is joint tenancy with rights of survivorship (JTWROS or joint tenancy). But what is joint tenancy? Joint tenancy is a legal right to property that provides the owner an undivided right to the enjoyment of the property. In other words, one joint tenant cannot legally stop the other joint tenant from enjoying use of the entire property. The “WROS” part of JTWROS means that when one joint tenant dies, the deceased joint tenant’s share of the property automatically passes to the other joint tenant without the need for probate or other formal proceedings.


This survivorship feature of joint tenancy makes it very attractive to married couples and individuals who want to jointly own property with another person (like an adult child) without additional estate planning documents or sending their joint owner through the time-consuming and costly probate process. Because the joint interest passes by law to the survivor, there is very little that must be done to pass that property to the other joint tenant at death. And who doesn’t like easy?


At first impression, this method of ownership is attractive, as it is generally very inexpensive to establish and works in a simple and straightforward way. However, joint tenancy and its potential impacts on estate planning can, in certain circumstances, result in unanticipated and unwelcome legal consequences.


It is important to note that there are other forms of joint ownership of property that will not be discussed at length in this article, including tenancy in common, life estates and remainder interests, community property ownership, and tenancy by the entirety.


Reasons to Terminate Joint Tenancy


Joint tenancy can become undesirable in a number of common situations, including the following:


  • ●a divorcing married couple
  • ●one joint tenant wants to sell the property, but the other joint owner is refusing to sell
  • ●a joint tenant changes his or her mind about who should receive that joint tenant’s property interest at death
  • ●a spouse in a second marriage wants to leave his or her joint tenancy interest in the married couple’s home to the children from the first marriage instead of to the spouse
  • ●joint tenants cannot agree on matters of management and upkeep of the property


In any of these cases, it may be time to terminate or sever the joint tenancy because the actual outcome of JTWROS is contrary to the joint tenants’ current or future wishes. For example, if a divorcing couple continued to own property as joint tenants, upon the death of one of them, the deceased spouse’s interest in the property would pass to the ex-spouse rather than to the children or to a new spouse.


Likewise, if a parent named only one child as a joint tenant on the deed to the family farm or residence but later created a will expressing a wish to have all of the children share equally in the property, the deed would override the will, and the entire interest in the property would pass to the one child who was listed on the deed as a joint tenant. That child would have no legal obligation to follow the terms of the will—not a good result.


Methods of Severing Joint Tenancy


Gifting. If the joint tenants are on good terms and can agree, the simplest way of severing a joint tenancy is for one of the joint tenants to file a new deed with the county recorder that transfers (or gifts) the property to the other joint tenant. This allows the individual receiving the property through the deed to own the entire interest in the property with no one else having a right of survivorship. Upon the death of the owner, the property will pass according to the terms of the owner’s will and testament, or if none, to the owner’s legal heirs determined by the state intestacy laws.


One downside to this method is that federal transfer tax law is likely to treat this conveyance of property as a taxable gift. When someone makes a taxable gift above $15,000 in one year to one individual, federal law requires that person to file a gift tax return that would most likely need to be prepared by an experienced tax professional.


Conveyance to a third party. Another option is to convey the joint tenancy interest in the property to a third party (through a gift or through a sale). Doing so will convert the joint tenancy to a tenancy in common, another form of joint ownership.


Tenancy in common is similar to joint tenancy in that the tenants have an undivided right to occupy and enjoy the property; however, there are no rights of survivorship between the tenants. Instead, at the first tenant in common’s death, the property interest will either pass according to the deceased owner’s will, or if there was no will, to the deceased’s owner’s family through intestacy laws.


In many states, such a conveyance can be made by a joint tenant unilaterally (without the consent of, or even by providing notice to, the other joint tenant). A joint tenant can also convey the joint tenancy interest to himself or herself, which will sever the joint tenancy and create a tenancy in common. Such a conveyance must typically be recorded in the county recorder’s office to be effective, though the law is not always consistent from state to state on the requirements for severing a joint tenancy. It is crucial that state law be consulted before any attempt to sever a joint tenancy to ensure that the applicable legal requirements are met.


It is also important to understand that in some states, if there are more than two joint tenants with rights of survivorship, the rule will create a last-person standing situation where the last surviving joint tenant will receive the entire interest in the property. However, in many states, if only one of multiple joint tenants attempts to sever the joint tenancy by conveying that individual’s interest to himself or herself or to a third party to create a tenancy in common, only that individual’s equal interest in the property would be converted into a tenancy in common interest. The remaining joint tenants would continue to own their equal share interests as JTWROS between themselves.


Divorce proceedings. In a divorce proceeding where a couple owns property in joint tenancy, the judge will usually sever any property owned in joint tenancy as a part of the divorce decree. Doing so ensures that the parties to the divorce can go their separate ways with their separate property rather than continue to be tied together through joint ownership of what was once marital property. The divorce decree will often require that the appropriate real property documents (deeds) be prepared and filed with the county recorder’s office to officially sever the joint tenancy. In many cases, the attorneys representing the divorcing spouses will assist in preparing and recording such paperwork with the county recorders.


Buyouts. Another method for severing a joint tenancy is for one of the joint tenants to simply make an offer to purchase the other joint tenant’s interest in the property. If the joint tenants agree on a purchase price, the seller prepares a deed to convey the real property to the other joint owner. The deed is then recorded, thereby severing the joint tenancy.


Judicial partitions. When joint tenancy between nonmarried individuals becomes a source of disagreement or conflict, it may be necessary to seek a judicial partition of the property. This remedy requires one or more of the joint tenants to seek help from a court and ask a judge to divide the property fairly between the joint tenants. This partition can be done in-kind by drawing boundaries through the land and allocating equal portions of the land among the joint tenants. Alternately, if such physical division is impossible due to the nature of the property, the court can order that the land be sold and the proceeds of the sale be divided equally between the parties.


Judicial partitions can be costly and time-consuming, and in the case of a forced sale of the property, can trigger recognition of capital gains on the property resulting in unwelcome tax liability for the parties. As a result, reserve judicial partition as a remedy of last resort if at all possible.


Don’t Go It Alone


In certain circumstances, joint tenancy can be a simple and effective method of jointly owning and transferring property at the death of one of the joint owners. Nevertheless, joint tenancy can also have serious unintended consequences. Many individuals fail to realize that joint tenancy survivorship provisions will nearly always override the provisions of a will or a trust agreement.


It is therefore crucial that someone who owns joint tenancy property seek the advice of an estate planning attorney when using joint tenancy as a tool for estate planning. Without careful consideration and planning of your estate, using joint tenancy improperly could unintentionally set your loved ones up for significant misunderstanding and legal expense. If you have any questions about your real property and how it relates to your estate planning, please give us a call. We are available for in-person or virtual consultations, whichever you prefer.

Blog Categories


AB Trust

ABLE Program



Adult Beneficiaries

Advancement of share



Alcohol abuse

Amendment of Trust

Annual exclusion


Armed Service Personnel

Asset Protection


Avoid Probate



Beneficiary Designations


Business Succession

Buy-Sell Agreement




Changes in life

Changes in tax law

Charitable Planning


Cognitive Impairment

Community Property



Core Values

Corporate Trustee


Creditor Protection






Digital Estate Planning

Discretionary Trusts



Divorce Protection



Drug abuse


Dynasty Trust

Dysfunctional Family


Elder Law

Equal Division

Estate Planning


Fair Division


Farming and Ranching



Financial Power of Attorney



Funding Your Trust


Generational Planning


Government Assistance





Health Care

Health Care Agent/Proxy

Health Savings Account




Holographic Will



Income Tax




Intent Letters


Inter-vivos Trusts




Irrevocable Trusts

Joint Tenancy



Law Firm



Liability Insurance

Life Estate

Life Events

Life Insurance

Lifetime Planning

Lifetime QTIP

Lifetime QTIP Trust

Limited Liability Company

Living Probate

Living Trust

Living Will



Long-Term Care

Lottery Winnings

Marital Property


Medicaid Planning


Mental Illness

Minor Children


Moving to/from a State




Nursing Home

Oral Wills

Overseas Estate Planning



Payable on Death (POD)

Peace of Mind

Personal Property

Personal Representative





Power of Appointment

Power of Attorney

Predator Protection


Prenuptual Agreements






QTIP Trust


Rental Property

Restatement of Trust

Retirement Assets


Revocable Trusts

Saving Money

Simultaneous Death

Special Needs Trusts

Spendthrift Tust


Stand Alone Retirement Trust (SRT)

Storage of Documents

Storing Documents


Successor Trustee


Tangible Personal Property Memorandum


Testamentary Trusts




Transfer of Assets

Transfer on Death (TOD)

Trust Administration

Trust Contest

Trust Funding

Trust Protector



Umbrella Insurance

Unborn Children

Unfinished Estate Plan

Update Planning

Vacation Poperty



Will Contests


Year End Strategies

Young Families

Archived Posts

Being Deployed? Here’s What You Need to Do
The Only Constant in Life is Change: When Circumstances Change, So Should Your Estate Plan
Beyond Wills and Trusts: 3 Documents Everyone Needs
Reconsider Outright Inheritances: How to Protect Your Heirs and Your Legacy from Bad Decisions and Outside Influences
Expand Your Cast to Prevent Chaos
Planning for Blended Families: Second or Later Marriages and Divorce of Beneficiaries
The Flexible Protection of Trust-Based Planning
Why “I Love You” Wills Really Don’t Say “I Love You”
Estate Plans for College Students and Other Young Adults: Why It’s the Perfect Time to Set Your Kids Up for Success
Your Guide to Better Incapacity Protection in Your Estate Plan
Are You Familiar With Community Property Trusts?: Learn How These Special Trusts Can Help Reduce Income Taxes
Modernizing an Outdated Estate Plan: What to do with a Confusing, Old Trust
Have You Considered a Dynasty Trust for Your Family’s Estate? Why You Should Think Twice Before Ruling One Out
What if you don’t die?: Why Ignoring the Importance of Incapacity Planning Can Have Serious Consequences
Don’t Put Off Till Tomorrow What You Can Do Today: Why It’s Time to Talk with Your Family and Your Estate Planning Attorney
Who Will Inherit Your Financial Wisdom?: Passing on More Than Just Wealth
How Tax Reform Will Impact You and Your Estate Planning
Will My Debt Outlive Me?: Your Questions About Debt After Death Answered
Planning Your Summer Vacation?: 5 Things to Consider Now
Talk to Your Family over the Holidays about Your Estate Plan
12 Crucial Insights for Protecting Your Furry Family Members
Does Your Family Know About Your Estate Plan?: A Guide for How Much to Share and With Whom
Planning for the Financial Future of a Troubled Adult Child: Your 3-Step Guide to Creating an Informed Estate Plan
Keeping the Peace After You Are Gone: Planning With an Aim Towards Building Unity
Have You Taken Advantage of the Tax Cuts and Jobs Act Planning Window?: Important Estate Planning Tips You Should Act on Now
Back-To-School Preparation: Not Just About the School Supplies- Use This Time to Revisit The Parts of Your Estate Plan That Impact Your Children Most
What Do the New 199A Regulations Mean for You?: New Choices and Opportunities for Tax Savings
Three Legal Strategies When Facing a Major Health Event: What You and Your Family Need to Know
How to Protect Your Retirement Account
2018 Midterm Elections: What Do They Mean For Your Estate Plan?: Strategic Planning Guidance in Light of the Midterm Results
Estate Planning Projects to Tackle in the New Year
Three Liability Planning Tips for Physicians You Can Use Too
3 Estate Planning Secrets the Wealthy Use That You Can Too!: Strategies to Enhance Your Success
Five Key Considerations for Your Estate Plan
Your Personal Property Memorandum: 4 Tips for Success
How to Coordinate Your Retirement and Estate Plans
How to Avoid a Disastrous Will or Trust Contest
Is Your Estate Plan Probate-Proof?
Want a Greater Sense of Purpose? Plan Your Legacy
What is Asset Protection and Do I Need It?
Caution: Your Traditional Asset Protection Plan Is Set Up to Fail
Your Vacation Checklist
Estate Plans for College Students and Other Young Adults: Why It’s the Perfect Time to Set Your Kids Up for Success
Does Your Estate Plan Protect Your Adult Beneficiaries?
Discretionary Trusts – How to Protect Your Beneficiaries from Bad Decisions and Outside Influences
Estate Planning Is Not Just About Money
Is Your Estate Plan Unfinished? Don’t Wait to Complete This Important Process!
When Equal Is Not Necessarily Fair
Lifetime QTIP Trusts – The Gift That Keeps Giving
One Year After the Historic 2016 Election: Strategic Estate Planning in Uncertain Times
Funding Your Revocable Living Trust to Avoid Probate
4 Tips for Avoiding a Will or Trust Contest
The Harmonious Family that Won't Fight
3 Asset Protection Tips You Can Use Now
Estate Planning for Rental Property Owners
Estate Planning is More Than Just Death Planning
The Trust Protection Myth: Your Revocable Trust Protects Against Lawsuits
Loan, Gift, or Advancement: Why the Classification Matters
What to Bring to Your First Meeting with the Estate Planning Attorney
Not Married? You’re not alone - but you still need a plan. Estate Planning for People Living Together, Bachelors, and Bachelorettes
Are Your Documents Following the Same Script? Basics of Beneficiary Forms and Estate Planning
A Trust for Fluffy or Fido? Why Every Pet Parent Needs to Consider a Pet Trust Today
Roth IRA Conversions After Tax Reform...Still a good idea? What are the implications for your family if you don’t spend all the money?
Estate Planning When Not All of Your Kids are in the Family Business
Beneficiary Designations and a Blended Family: Why You Need to Think Before You Sign
The One Thing Every New Grandparent MUST Do As Soon as Possible
How to Fix 5 Common Estate Planning Problems
How to Leave Your Life Insurance and Retirement Plan to Your Minor Children
Financial Planning. Tax Planning. Legacy Planning. Estate Planning - How many plans do I need?!
Why Not Just Go on NoloⓇ and Create Your Own Estate Planning Documents Cheaply?
3 Things You Must Do Once Your Divorce Is Final
Protecting Your Children’s Inheritance When You are Divorced
Finding the Right Fit: Questions For Prospective Wills and Trusts Attorneys
The Biggest Threat to Successful Estate Planning
Steps For Starting the End-of-Life Conversation
Joint Tenancy Pitfalls: The ‘Simple’ Fix that Can Leave Your Family Broke
One Call You Must Make After You Buy a Home-That You’ve Probably Forgotten
3 Tips For Every New Homeowner
Declare your Independence from Court Interference!
What To Do With Your Beloved Collection
Legal Considerations When Getting Your New College Student Ready to Go
Digital Afterlife- An Estate Plan For Your Facebook Account
How an Estate Planning Letter of Intent Can Help Your Family
Kids and Investors Are Not the Only Options
Retirement Planning for Business Owners
Passing Along a Benefit, Not a Burden - Why Incapacity Planning for Business Owners is an Indispensable Component of Your Plan
Updating Your Revocable Trust: How Many “Tweaks” Are Too Many?
U.S. Supreme Court Rules Inherited IRAs are Not Protected from Creditors
4 Tips for Avoiding a Will or Trust Contest
Three Liability Planning Tips for Physicians Anyone Can Use
Three Estate Planning Mistakes Farmers and Ranchers Make and How to Avoid Them
The Wrong Successor Trustee Can Derail Your Final Wishes
The Trust Protection Myth: Your Revocable Trust Protects Against Lawsuits
The Tragic Loss of Star Trek’s Anton Yelchin: Lessons for Estate and Legacy Planning
The Three-Year Review and The Three-Year Plan
The Shocking Truth About Asset Protection Planning
The Pros and Cons of Probate
The Perils of Promises...Marlon Brando’s Story
The Lifetime QTIP Trust: Or (How to Maintain Control of Your Estate and Keep Spouse No. 2 Happy)
The Lifetime QTIP Trust: Or (How to Maintain Control of Your Estate and Keep Spouse No. 2 Happy)
The IRS Took Half of Tony Soprano’s Estate: Don’t Fall into the Same Trap!
The Essential Legal Documents You Need for Incapacity Planning
Surprise! You Can’t Easily Disinherit Your Spouse in the U.S.
Stress Test Your Estate Plan
Sonny Bono’s Procrastination in Creating a Will Led to Years of Estate Battles
Skyrocketing Probate Fees – Another Reason to Avoid Probate Court
Revocable Trust vs. Irrevocable Trust: Which Is Best for You?
Prince’s Sad and Incredibly Expensive Mistake! (Are You Making It, Too?)
3 Powers to Consider Giving to a Trust Protector
Philip Seymour Hoffman’s Will: 3 Critical Mistakes
Parental Warning: If You Own Your Property this Way, You May Accidentally Disinherit Your Own Children
Over 70% of Elvis Presley’s Estate Paid in Taxes & Fees: How Can You Avoid the Same Trap?
Nosey Neighbor Nellie Can Find Out About Your Probate. Really.
Michael Jackson’s Estate Pulled into Seemingly Endless Probate Court Battles
Lifetime QTIP Trusts – The Gift That Keeps Giving
Is Your Estate Plan as Stale as Last Week’s Ham Sandwich? 5 Reasons to Update Your Estate Plan
Is a Revocable Living Trust Right for You?
Is a Payable on Death Account Right for You and Your Family?
Irrevocable Trust Decanting in 4 Steps
IRS Announcement: Estate Tax Closing Letters Will Now Only Be Issued Upon Request
Investment, Insurance, Annuity, and Retirement Planning Considerations
If You Die Without a Will, Does Your Spouse Inherit Your Entire Estate?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
How to Minimize the (Voluntary) Federal Estate Tax with Portability
How to Minimize Legal Fees After Death
HELP! This Probate Is Taking Forever!!!
Four Steps to Stop Mail Addressed to a Deceased Person
Five Things You Need to Know About the Recently ABLE Act
Flo Jo’s Tragic Mistake: A Missing Will
5 Reasons Why Uncle Bill May Not Make a Good Trustee
Financial Firms Roll Out Form Aimed at Stopping Financial Elder Abuse
5 Reasons to Embrace Estate Planning
Estate Planning: 3 Reasons We Run the Other Way
Estate Planning Basics for Newlyweds – How to Get Prepared for the Unexpected
Escape From a Bad Trust: 5 Strong Reasons to Decant Your Trust
Doris Duke’s Trustee Bilked Estate for $1M: How Well Do You Know Yours?
Don’t Leave Your Trust Unguarded: 6 Key Ways a Trust Protector Can Help You
Does Your Estate Plan Protect Your Adult Beneficiaries?
Who’s Going to Get It: Do You Really Know the Beneficiaries of Your Dynasty Trust?
Dispelling the Top 3 Estate Planning Myths
Discretionary Trusts – How to Protect Your Beneficiaries From Bad Decisions and Outside Influences
Did you include your grandkids in your will? 5 Tips to Avoid Common Problems
Did Whitney Houston Leave Too Much Money To Bobbi Kristina?
Dennis Hopper Saves Heirs with Last Minute Estate Plan Changes
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Avoiding Guardianship When you are Incapacitated
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Who Should I Choose as a Successor Trustee
Celebrities Who Failed To Recognize Unborn Children in Their Wills: A Teachable Lesson
Caution: Your Traditional Asset Protection Plan is Set Up to Fail
How to Choose a Trustee
Name a Guardian for Your Child
Caution: Creditors Now Have Easy Access to Inherited IRAs
Big Bang Theory Star’s “Ironclad” Prenup Challenged: How Does Yours Compare?
Will Your Family Be Able to Find Your Original Last Will?
Ways to Avoid Court Proceedings
Are Handwritten Intentions Enforceable? Princess Diana Thought So…
An Estate Planning Checklist to Facilitate Wealth Transfer A New Resource for Older Americans and Their Families
AB Trusts – Do You Need to Get Rid of Yours?
A Powerful Exercise to Surface the Values You Want to Pass on to the Next Generation
10 Types of Trusts: A Quick Look
5 Tragic Mistakes People Make When Leaving Assets to Their Pets
5 Things Every New Mother Needs to Know About Wills
New Legislation Could Mean the End of Estate and GSTT Taxes What This Means for You and Your Family
5 Reasons to Protect Your Retirement Accounts Now
5 Mistakes Made by Successor Trustees (and How to Prevent Them)
5 Good Reasons to Decant a Trust
3 Ways to Minimize Estate Planning Fees
3 Tips for Overwhelmed Executors
3 Simple Ways to Avoid Probate Costs
3 Reasons You Want to Avoid Probate
Who Needs an Estate Plan?
AB Trusts – Do You Need to Get Rid of Yours?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
Better to Play it Safe: Proactive Estate Planning and Cognitive Impairment
Will Your Revocable Living Trust Avoid Probate? It Depends.
Why Your Estate Planning Project Must Morph into a Process
Estate Planning Tips for Commitment Without Marraige
3 Celebrity Probate Disasters and Tragic Lessons
3 Examples of When an Irrevocable Trust Can – and Should – Be Modified

Nennig Law Offices, LLC assists clients in Madison, WI and throughout Southern Wisconsin including Verona, Middleton, Sun Prairie, Cross Plains,Sauk City, Belleville, Waunakee, Mount Horeb, Oregon, Black Earth, DeForest,Monona, McFarland, Stoughton, Cambridge, Deerfield and Fitchburg.

© 2021 Nennig Law Offices, LLC
6418 Normandy Ln, Ste 225, Madison, WI 53719
| Phone: 608-661-4333

Estate Planning | Asset Protection | Business Succession Planning | Special Needs Planning | Planning for Children | Advanced Estate Planning | Probate & Estate Administration | Estate Planning for High Net Worth Individuals | Estate Planning with Wills | Trusts & Estate Planning | Estate Planning for Non-Traditional Families | Estate Tax Planning | Estate Litigation | Guardianships | Pet Trusts | COVD-19 | Who We Are | Becoming A Client

Attorney Website Design By
Zola Creative