Chapter 7 : Marital Status

• Library: Standards for Examination of Real Estate Titles in Arkansas (2021 Ed.)

CHAPTER 7: MARITAL STATUS

Standard 7.1 Recitals Concerning Marital Status

1. Where there is no evidence that a grantor is married, a conveyance reciting that the grantor is "single" or "unmarried" should be accepted without further inquiry or requirement.
2. Competent evidence or proof, by affidavit or public record, should be required where the marital status of a sole grantor is not recited, and the conveyance has been recorded less than seven years,¹⁰⁹ and, if the grantor was married, a conveyance (joinder, if the property is a homestead) should be obtained from the spouse.

Standard 7.2 Tenancy by the Entirety

1. Unless a different estate is specifically indicated or described, a conveyance to parties who are married, regardless of whether such fact is stated, creates a survivorship estate between spouses known as a "tenancy by the entirety."¹¹⁰ Proof of the marital status may be shown outside the instrument of conveyance.
2. Fee simple title vests immediately in the surviving tenant upon the death of one tenant by the entirety. The fact of death may be established by any competent evidence such as: (1) a certified copy of the death certificate of the tenant; or (2) a certified copy of the probate court proceedings indicating the death of the tenant; and if neither of the above is available, then (3) an affidavit of death by a person who has personal knowledge of the death of the tenant.
3. A conveyance by both tenants or a surviving tenant passes fee simple title from an estate by the entirety. Conveyance by only one tenant does not destroy an estate by the entirety but conveys any possessory right and the rights to income and profits and of survivorship of the grantor. The grantee will succeed to fee simple title if the grantor survives the other tenant.¹¹¹
4. Effect of divorce upon tenancy by the entirety:

a. A court is powerless to destroy a tenancy by the entirety created prior to March 28, 1947, without the consent of the parties.¹¹²
b. A decree of divorce entered subsequent to March 28, 1947, but prior to March 8, 1975, did not terminate a tenancy by the entirety unless it specifically so provided.¹¹³
c. A decree of divorce entered subsequent to March 8, 1975, terminated a tenancy by the entirety in favor of a tenancy in common unless it otherwise provided.¹¹⁴

5. A deed to a couple that is not married, although worded as a tenancy by the entirety, will create only a tenancy in common unless the wording is sufficient to convey a joint tenancy with right of survivorship.¹¹⁵ This is true even if the couple later marries.

Standard 7.3 Property Settlements

A property settlement agreement standing alone cannot vest or divest title. A conveyance must be made to effectuate the transfer.

Standard 7.4 Instruments Between Spouses

A married person may execute a power of attorney designating a spouse as agent or attorney in fact to convey or encumber any real property interest, including dower, cur-tesy and homestead. Such an instrument is subject to the general provisions governing the validity and effectiveness of powers of attorney.¹¹⁶ If an instrument is executed by an attorney in fact, a valid power of attorney must be recorded (or re-recorded) together with the instrument encumbering or conveying an interest in real property in the real estate records of the county judicial district where the subject property interest is situated.¹¹⁷

Standard 7.5 Dower and Curtesy

1. Relinquishment of

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