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I'm late to doing the simulated MBE, going over the ones I got wrong now..I cannot understand barbri's explanation for this- it literally makes zero sense to me and I swear I've done exact same problems on adaptibar and gotten them right on this rule.

Q169.

Parcel of property devised to husband and wife "joint tenants with right of survivorship" through will of husband's mother. Title passes to them, H&W experience marital difficulties, legally separate. Husband did not know wife quitclaimed her interest in to a BFP. Then H&W reconcile. Next month, wife is killed in car crash. BFP now brings claim seeking partition, husband files counterclaim for appropriate title claiming ROS.

A- purchaser because he owns an undivided one half interest of property.
D- husband, b/c he succeeded to entire ownership when wife died.

I answered D. Husband has ownership because of ROS. They were not divorced, they were legally separated so no severance of the TBE, and I thought this was a tenancy by the entirety because time, title, interest, possession, and marriage were all there when the will conveyed ownership to H&W so wife can't just go give her interest away to a BFP.

Barbri is saying they inherited the interest as JT so the wife's conveyance to BFP severed the JT. I thought you could not do this- ie there is no unilateral conveyance when you are a TBE just as one creditor of one spouse can't sever the tenancy either so the wife's conveyance meant nothing the tenancy stayed in tact, and then on her death properly passed to her husband because he has ROS...am I missing
something here??

Thanks!

cnk1220 wrote:I'm late to doing the simulated MBE, going over the ones I got wrong now..I cannot understand barbri's explanation for this- it literally makes zero sense to me and I swear I've done exact same problems on adaptibar and gotten them right on this rule.

Q169.

Parcel of property devised to husband and wife "joint tenants with right of survivorship" through will of husband's mother. Title passes to them, H&W experience marital difficulties, legally separate. Husband did not know wife quitclaimed her interest in to a BFP. Then H&W reconcile. Next month, wife is killed in car crash. BFP now brings claim seeking partition, husband files counterclaim for appropriate title claiming ROS.

A- purchaser because he owns an undivided one half interest of property.
D- husband, b/c he succeeded to entire ownership when wife died.

I answered D. Husband has ownership because of ROS. They were not divorced, they were legally separated so no severance of the JT, and I thought this was a tenancy by the entirety because time, title, interest, possession, and marriage were all there when the will conveyed ownership to H&W so wife can't just go give her interest away to a BFP.

Barbri is saying they inherited the interest as JT so the wife's conveyance to BFP severed the JT. I thought you could not do this- ie there is no unilateral conveyance when you are a TBE just as one creditor of one spouse can't sever the tenancy either so the wife's conveyance meant nothing the tenancy stayed in tact, and then on her death properly passed to her husband because he has ROS...am I missing something here??

Thanks!

Joint tenancies can be severed by an inter vivos act (partition, mortgage, sale) and it becomes a Tenancy in Common. Just can't be devised or descend via intestacy.

dchunny614 wrote:

cnk1220 wrote:I'm late to doing the simulated MBE, going over the ones I got wrong now..I cannot understand barbri's explanation for this- it literally makes zero sense to me and I swear I've done exact same problems on adaptibar and gotten them right on this rule.

Q169.

Parcel of property devised to husband and wife "joint tenants with right of survivorship" through will of husband's mother. Title passes to them, H&W experience marital difficulties, legally separate. Husband did not know wife quitclaimed her interest in to a BFP. Then H&W reconcile. Next month, wife is killed in car crash. BFP now brings claim seeking partition, husband files counterclaim for appropriate title claiming ROS.

A- purchaser because he owns an undivided one half interest of property.
D- husband, b/c he succeeded to entire ownership when wife died.

I answered D. Husband has ownership because of ROS. They were not divorced, they were legally separated so no severance of the JT, and I thought this was a tenancy by the entirety because time, title, interest, possession, and marriage were all there when the will conveyed ownership to H&W so wife can't just go give her interest away to a BFP.

Barbri is saying they inherited the interest as JT so the wife's conveyance to BFP severed the JT. I thought you could not do this- ie there is no unilateral conveyance when you are a TBE just as one creditor of one spouse can't sever the tenancy either so the wife's conveyance meant nothing the tenancy stayed in tact, and then on her death properly passed to her husband because he has ROS...am I missing something here??

Thanks!

Joint tenancies can be severed by an inter vivos act (partition, mortgage, sale) and it becomes a Tenancy in Common. Just can't be devised or descend via intestacy.

Right but isn't that how a joint tenancy differs from a TBE? I thought a husband and wife who are taking title as a married couple can't partition the property unless both agree- that's what makes TBE different from just a joint tenancy (which would make sense like owning property together along with the element of marriage is more "sacred" then when brothers and sisters inherit as JT ).

Unless I'm wrong I thought TBE can only be severed by divorce in which the marriage ends, voluntary partition where both spouses agree to sell property, or death of one spouse in which the other auto-inherits. I don't see in above problem how wife is unilaterally giving her interest in the property away unless I'm missing something in the fact pattern where they did not inherit the property from the husband's mother's will as TBE to begin with?

I guess my real question here is that I thought the old common law rule is there is a rebuttable presumption that any conveyance to a married couple automatically creates a tenancy by the entirety because husband and wife take property as "one entity." So the will's conveyance to them auto created a TBE.

Is this not true?

cnk1220 wrote:I guess my real question here is that I thought the old common law rule is there is a rebuttable presumption that any conveyance to a married couple automatically creates a tenancy by the entirety because husband and wife take property as "one entity." So the will's conveyance to them auto created a TBE.

Is this not true?

That is the presumption if it is called into question, however the presumption can be rebutted by the intent of the donor and the intent will control... here the will specifically said JTWROS. Had it not said that then the presumption would have taken effect.

maztastic247 wrote:

cnk1220 wrote:I guess my real question here is that I thought the old common law rule is there is a rebuttable presumption that any conveyance to a married couple automatically creates a tenancy by the entirety because husband and wife take property as "one entity." So the will's conveyance to them auto created a TBE.

Is this not true?

That is the presumption if it is called into question, however the presumption can be rebutted by the intent of the donor and the intent will control... here the will specifically said JTWROS. Had it not said that then the presumption would have taken effect.

okay thank you! this is what I was looking for- I guess in all of the other problems I had done, the grantor hadn't commented on her intent or it just said "husband and wife" so we assume the TBE which is why I became so accustomed to that assumption.