In California, spouses frequently hold real estate as joint tenants, meaning that if one spouse dies, their interest automatically passes to the surviving spouse by right of survivorship. However, when a marriage dissolves, one spouse may wish to sever the joint tenancy and transfer their half interest to a living trust to ensure the property does not pass to their soon-to-be ex-spouse.
But how does the Automatic Temporary Restraining Order (ATRO) impact this process? And how does this affect the right to partition the property?
The ATRO in Divorce and Its Impact on Joint Tenancy Severance
When a spouse files for divorce in California, Family Code § 2040 automatically imposes an ATRO, which restrains both parties from:
- Transferring, encumbering, concealing, or disposing of property—whether community, quasi-community, or separate property—without written consent or a court order.
- Creating or modifying a nonprobate transfer (such as a trust) that affects the disposition of property.
These restrictions raise a critical issue: Can one spouse sever a joint tenancy and transfer their half interest into a living trust while the ATRO is in place?
Key Case Law: The Intersection of ATROs, Joint Tenancy Severance, and Partition Actions
1. Estate of Mitchell (1999): Severance Is Not a “Transfer”
In Estate of Mitchell (1999) 76 Cal.App.4th 1378, the court ruled that severing a joint tenancy does not violate an ATRO, because it does not constitute a “transfer” or “disposition” of property. Instead, the court held that the right of survivorship is merely an expectancy, not an actual property interest. Thus, a spouse can unilaterally sever a joint tenancy, eliminating the automatic transfer to the other spouse upon death, though this rule was refined in further case law.
2. Raney v. Cerkueira (2019): Notice and Recording Requirements Must Be Followed
While Mitchell clarified that severance is not prohibited under an ATRO, Raney v. Cerkueira (2019) 36 Cal.App.5th 311 added a critical procedural requirement: a severance is not effective unless the severing spouse complies with both:
- Providing notice to the other spouse, as required by Family Code § 2040(b)(3).
- Recording the severance document, as required by Civil Code § 683.2(c).
Importantly, Raney held that if a spouse records the severance before providing notice, the right of survivorship remains in effect until notice is given. This means that if the severing spouse dies before completing both steps, the surviving spouse could still claim full ownership of the property.
How This Impacts a Partition Action and Transfers to a Living Trust
For a spouse who wishes to prevent their interest from automatically passing to their soon-to-be ex-spouse upon death, a partition action can become an essential tool. Severing the joint tenancy and transferring the half interest into a revocable living trust allows them to:
- Avoid the right of survivorship and ensure their share of the property goes to their chosen heirs, such as children from a previous marriage or other beneficiaries.
- Maintain control over their interest, allowing for strategic planning even before the dissolution is finalized.
- Request partition by sale or partition in kind, if they no longer wish to co-own the property with their spouse.
However, as seen in Raney, a failure to comply with notice and recording requirements could result in an ineffective severance, risking the entire property passing to the surviving spouse.
Steps to Ensure a Proper Severance and Transfer to a Trust
If a spouse in a pending divorce wants to sever a joint tenancy and transfer their half interest into a living trust, they must:
- Execute a severance of joint tenancy document (e.g., a grant deed to themselves as a tenant in common).
- Provide proper notice of the severance to the other spouse, per Family Code § 2040(b)(3).
- Record the severance document in the county recorder’s office, per Civil Code § 683.2(c).
- Transfer their half interest into a revocable trust after ensuring compliance with ATRO requirements.
Failing to follow these steps could result in a disputed ownership interest, an invalid severance, or complications in a partition action.
Final Thoughts: Avoiding Pitfalls in Severance, ATROs, and Partition Actions
For divorcing spouses who wish to sever a joint tenancy and control their interest in real property, it is critical to:
- Follow the procedural steps for notice and recording.
- Consider a partition action if co-ownership is no longer viable.
- Seek legal counsel to ensure compliance with ATROs and protect their intended property interests.
If you co-own property with a party following the death of one spouse to a marriage, the experienced partition attorneys at Talkov Law can guide you through the legal complexities of co-ownership. Contact us today for a consultation on your rights and options under California law.
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