It is not uncommon for the title to real estate, such as a primary residence, to be held jointly with a spouse. However, we often find that misinformation and myths about South Carolina property law tend to cause confusion after the death of a spouse.
There are multiple forms of joint ownership, and the nature and consequences of each ownership form are significantly different. Therefore, you should consult a knowledgeable real estate attorney who can explain the distinctions and help you choose the correct form of ownership for your particular circumstances.
Tenancy by the Entirety (N/A in South Carolina)
Under English common law, husband and wife were viewed as one person, with the separate legal existence of the wife being merged into the husband upon marriage. Therefore, married couples holding title to property jointly were said to be seized per tout et non per my (“by the whole and not by the part”).
However, after the Married Women’s Property Act granted separate property rights to married women in South Carolina, the “antique theory of oneness of husband and wife” was disregarded, and the specific form of joint ownership called “tenancy by the entirety” ceased to exist in South Carolina.
In some other States, such as North Carolina, a tenancy by the entirety can be created when married couples take title to property jointly.
tenancy in common
Under the modern common law in South Carolina, a tenancy in common is the favored form of joint ownership.
“[T]he modern tendency is to restrict the creation of joint tenancies and to abolish the idea of survivorship . . . . The estate in joint tenancy presents some of the most artificial rules of subtle distinctions of the ancient common law. It was once highly favored in England, doubtless for reasons that were feudal in their character, and influential in their day; but which have long since ceased to operate.” Free v. Sandifer, 131 S.C. 232 (1925).
“Courts began favoring tenancies in common over joint tenancies because the harsh results of survivorship rights often encumbered the land and defeated the intention of the grantor.” Smith v. Cutler, 366 S.C. 546 (2005).
A deed that contains the spouses’ names followed by words of inheritance or succession but without words of survivorship will create a tenancy in common.
A deed of a partial interest from one spouse to another will create a tenancy in common.
During their joint lives, each spouse has an undivided, fractional interest in the property that can be conveyed to another person freely and without restriction.
Upon the death of one spouse:
the interest of the deceased spouse passes either under the laws of intestacy or under the terms of a Last Will and Testament, as the case may be, to the deceased spouse’s heirs or devisees; and
the Personal Representative of the deceased spouse’s probate estate must execute and record a Deed of Distribution with the Register of Deeds of the County in which the real estate is located.
Joint Tenancy with RightS of Survivorship
In South Carolina, a joint tenancy with rights of survivorship can be created by a deed that contains both spouses’ names followed by the words: “as joint tenants with rights of survivorship, and not as tenants in common”
During their joint lives, a joint tenancy can be severed by either spouse and, upon severance, becomes a tenancy in common without a right of survivorship. Severance can occur in several ways, including:
by one spouse conveying his or her interest to the other spouse,
by one spouse conveying his or her interest to an unrelated third party,
the filing of a divorce decree, which vests the interest in both spouses as tenants in common, unless the court order otherwise provides, and
by the sale or conveyance of one spouse’s interest by court order (e.g., partition).
Upon the death of one spouse:
the entire interest of the deceased spouse vests in the surviving spouse, who is vested with the entire interest in the real estate previously owned both; and
the surviving spouse may file with the Register of Deeds of the County in which the real estate is located a certified copy of the certificate of death, as conclusive proof that the interest of the deceased spouse has vested by operation of law in the surviving spouse.
Tenancy in Common with Right of Survivorship
In South Carolina, a tenancy in common with an indestructible right of survivorship can be created by a deed that contains both spouses’ names followed by the words: “as joint tenants with rights of survivorship, and not as tenants in common, and upon the death of either of them, then to the survivor, his or her heirs and assigns forever”
During their joint lives, both spouses share:
a tenancy in common for life, with cross remainders for life,
with remainder in fee to the ultimate survivor.
In contrast to a joint tenancy, where the full estate is vested immediately and one spouse could end the joint tenancy unilaterally, the vested cross-remainders and the contingent ultimate remainders of a tenancy in common with right of survivorship are indestructible (i.e., not subject to defeat by the unilateral action of one spouse).
Therefore, during their joint lives, neither spouse can sever a tenancy in common with right of survivorship, and the right of survivorship cannot be defeated, unless there is an agreement and joint action between both spouses to do so.
Upon the death of one spouse:
the future interest vests in the surviving spouse, and
the surviving spouse must be the sole owner because of the restriction upon alienation that is extinguished upon the other spouse’s death.
Ultimately, a deed should be drafted according to the intention of the parties, and only a licensed attorney should draft and record a deed in order to ensure that the parties’ intention is memorialized and effectuated. Please consult an attorney at Ingram Law Firm who can help you choose the correct form of ownership for your particular circumstances.