CHAPTER 3.02. Joint Estates

• Jurisdiction: United States

3.02. Joint Estates

There are various ways in which an estate may be held by the owner. There may be single ownership, where the estate is held solely by one person, or there may be a variety of types of joint ownership. The most common forms of joint ownership are tenancy in common, joint tenancy with right of survivorship, and tenancy by the entirety.

[1] Tenancy in Common

In a tenancy in common, each interest is held separately by its owner in common with the other holders of a comparable interest. This means that each interest is inheritable, devisable, and alienable by its holder.⁸ The other co-tenants have no rights to the interest of a co-tenant. The holder of that interest in common may do with that interest whatever that person wishes. Generally, a tenancy in common is created by a grant to "B and C as tenants in common." However, tenancy in common is also the presumed estate when the grant does not identify the nature of the joint estate and the grantees are not married to one another.⁹

[2] Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship creates an estate that is not severed and independent from the estates of the other joint owners.¹⁰ The grant might be "to B and C as joint tenants with right of survivorship and not as tenants in common." In other words, the interest is only alienable because alienation will convert the joint tenancy into a tenancy in common.¹¹ But the interest is not devisable or inheritable because when one joint tenant dies, that person's ownership interest automatically vests in the surviving joint tenant.¹² The deceased owner's heirs get nothing. To create a joint tenancy with right of survivorship, certain steps must be taken. First, given the presumption that silence in the grant will mean a tenancy in common, the grant must identify that the grantees are to hold as joint tenants and not as tenants in common.¹³ The interests of the joint tenants must be identical so that each has the same interest in the property as the other.¹⁴ In addition, each of the joint tenants has an identical right to possess the property. Historically, a joint tenancy had to be received in the same instrument of conveyance, but Delaware does not follow the rule and allows the interests to be received at different times.

[3] Tenancy by the Entirety

The tenancy is comparable to a joint tenancy with the right of survivorship, but with some differences: specifically, in a tenancy by the entirety, the two parties (as...