SI ATL01110.510 Shared Ownership (RTN 12-01 – 03/2012)
The purpose of these instructions is to provide updated information about shared ownership of (real or personal) property based on a review of current law and regulations by the Office of General Counsel. The instructions provide guidelines for identifying shared ownership and ownership by husband and wife in the Atlanta region. See SI 01110.510B for an explanation of sole ownership of (real or personal) property.
B. Shared ownership
Shared ownership of (real or personal) property means that two or more people own it concurrently. See SI 01110.510C. for additional information regarding different types of shared ownership. Shared ownership may include:
a. Owners do not have same interests
In tenancy-in-common, two or more persons each have an undivided fractional interest in the whole property for the duration of the tenancy. These interests are not necessarily equal; e.g., two joint tenants do not necessarily each own half of the property. One owner may sell, transfer or otherwise dispose of his or her share of the property without permission of the other owner(s) but cannot take these actions with respect to the entire property.
b. No survivorship rights
When a tenant-in-common dies, the surviving tenant(s) has no automatic survivorship rights to the deceased's ownership interest in the property. Upon a tenant's death, the deceased's interest passes to his or her estate or heirs.
Example: Don, Charles, and Fred Evans own property as tenants-in- common. Charles and Fred each own an undivided one-fourth interest in the property while Don owns the remaining one-half interest. If Don Evans were to sell his half interest to Stanley Long, Mr. Long would become a tenant-in-common with Charles and Fred Evans. If Mr. Long were then to die so that his property passed to his four children, each of them would own a one-eighth interest as tenants-in-common with Charles and Fred who would each continue to own a one-fourth interest.
2. Joint tenancy
a. Each owner has same interest
In joint tenancy, each of two or more persons has the same undivided ownership interest and possession of the whole property for the duration of the tenancy. In effect, each owner owns all of the property.
b. Survivorship rights
If survivorship rights exist in a joint tenancy, then upon the death of one of only two joint tenants, the survivor becomes sole owner. Upon the death of one of three or more joint tenants, the survivors become joint tenants of the entire interest.
The following survivorship rules apply in the Atlanta region:
Alabama: Joint tenancy generally does not include survivorship rights for the surviving tenant(s); that is, the interest in the property formerly held by the deceased joint tenant does not automatically transfer to the other joint tenant(s). However, if an instrument creating a joint tenancy states that it is “with rights of survivorship” or uses other words showing such an intention, then the instrument will create survivorship rights for the surviving tenant(s).
Florida: Same as Alabama (in this section)
Georgia: An instrument taking effect before 1/1/1977 may not create a joint tenancy, but it may create a tenancy in common with survivorship rights. For instruments that take effect after 1/1/1977, the instrument may create a joint interest with survivorship rights in two or more persons. Joint tenancy generally does not include survivorship rights for the surviving tenant(s). Additionally, instruments must be construed as creating interests in common without survivorship unless the instrument expressly refers to the takers as “joint tenants” or uses similar language, which will create a joint tenancy estate with rights of survivorship. Unless otherwise specifically provided, a tenancy in common is created when two or more persons are entitled to the simultaneous possession of any property.
Kentucky: Same as Alabama (in this section).
Mississippi: A conveyance or devise of land to two or more persons must be construed as creating an estate in common, unless the instrument manifestly appears to create a joint tenancy with the right of survivorship. Mississippi recognizes survivorship rights for the surviving joint tenant(s) as the distinguishing characteristic of joint tenancy, but the joint tenancy must have been created by a clear and unambiguous agreement. If an instrument granting property to two or more people does not contain a survivorship provision, a joint tenancy will not be presumed.
North Carolina: Same as Alabama (in this section).
South Carolina: Same as Alabama (in this section). Additionally, if a deed contains the names of the owners followed by the words “as joint tenants with right of survivorship and not as tenants in common,” the deed conclusively creates a joint tenancy with survivorship rights.
Tennessee: Same as Alabama (in this section).
c. Conversion to tenancy-in-common
In most States, it is possible for joint tenants to take action during their lifetimes to convert the joint tenancy to a tenancy-in-common (see SI 01110.510C.1.).
C. Ownership by husband and wife
1. Tenancy by the entirety – Married couples only
A tenancy by the entirety can exist only between the members of a married couple. The wife and husband as a unit own the entire property and to sell the property, both parties must consent. However, if a marriage ends in divorce, the former spouses become tenants-in- common and one can sell his or her share without the consent of the other. Upon the death of one tenant by the entirety, the survivor takes the whole.
Example: An SSI beneficiary shares home ownership with her spouse as tenancy by the entirety. The SSI beneficiary leaves the home on 3/20 and begins residing in a shelter for victims of domestic abuse. They are not divorced. On 3/29, the CR obtains a statement either signed or recorded on a DROC from the husband verifying that he will not grant permission to sell the home. Effective 4/1, the home will remain excluded from resource counting regardless of whether the undue hardship provisions apply. Since the SSI beneficiary does not have legal right to liquidate the home, it would qualify as an asset that is not a resource. See SI 01110.115 for further information regarding assets that are not resources.
NOTE: The same policy may apply to a home owned in a joint tenancy depending on applicable state law and the specific circumstances surrounding the shared ownership (e.g. whether the owners convert the joint tenancy to a tenancy in common or otherwise sell their share).
2. Determining Tenancy by the Entirety
Remember once the marriage ends by death or divorce, tenants by the entirety no longer applies. It is only necessary to determine whether a couple owns property as tenants by the entirety in two situations.
Non-home property jointly owned by a separated married couple, or
Language in a deed or will that contains such language as “with rights of survivorship”, “joint tenancy”, or “tenancy by the entirety,” may indicate the grantor's intention to create a joint tenancy or a tenancy by the entirety. In such an event, refer the case to the Atlanta Regional Commissioner for Management and Operations Support (ARC MOS), Center for Programs Support, for an opinion from the Regional attorney.
The following tenancy by the entirety rules apply in the Atlanta region:
Alabama: Alabama does not recognize joint tenancy by the entirety, and therefore, we recognize husband and wife as tenants in common. Each is free to dispose of this ownership interest. However, an instrument that grants property to husband and wife may expressly create a right of survivorship to the surviving spouse, if the instrument grants the property to husband and wife “as tenants in the entirety,” as joint tenants “with rights of survivorship,” or with similar language showing an intent to create a right of survivorship.
Florida: Florida presumes that any property, real or personal, owned by a husband and wife is a “tenancy by the entireties” unless the instrument conveying the property expresses a contrary intent. Property held as a tenancy by the entireties has six characteristics: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names). If the individuals are not married and the language of the instrument does create survivorship rights, the individuals are tenants in common.
Georgia: In Georgia, tenancy by the entirety refers to joint tenancy between husband and wife. For instruments taking effect after 1/1/1977, Georgia law recognizes right of survivorship if it is created by an express grant in the instrument, but any language creating survivorship rights creates a joint tenancy, not a tenancy by the entirety. In a joint tenancy, a spouse may dispose of his or her share of the property without the approval of the other spouse.
Kentucky: Kentucky recognizes joint tenancy by the entirety. However, the instrument granting real property to husband and wife must expressly create a mutual right to the entirety by survivorship. Otherwise, the instrument granting real property to husband and wife creates a tenancy in common. A deed showing that the husband and wife jointly own the property with the right of survivorship establishes ownership by the entirety.
Mississippi: Same as Kentucky (in this section). Additionally, language indicating survivorship, joint tenancy, or tenancy by the entirety may show a grantor's intention to create an interest other than a tenancy in common.
North Carolina: Any conveyance of interest in property to a husband and wife creates a tenancy by the entirety, unless the conveyance states otherwise. North Carolina presumes that any joint tenancy owned by a husband and wife is a “single tenancy by the entirety,” unless otherwise provided.
South Carolina: Same as Alabama (in this section).
Tennessee: Tennessee presumes that an instrument conveying property to a husband and wife creates a tenancy by the entirety unless otherwise provided, and that property held jointly by a husband and wife is held as tenants by the entirety.
NOTE: In most States in the Atlanta region, when a husband sells property, his wife must sign the deed to show that she will not make a claim to the property after the husband's death. (In some States, the husband must sign the deed when his wife sells property.) This does not mean the wife's consent is necessary to sell the property. The property can be legally sold without the wife's signature, but the buyer does not receive clear title and the value of the property may, therefore, be less. See the examples below.
Example: Mr. and Mrs. Frank Armstrong separated when Mrs. Armstrong entered a nursing home one year ago. Mr. Armstrong has filed a claim for himself. He alleges they are joint owners of non-home property valued at $6,000.00.
Florida, Tennessee and North Carolina: Mr. and Mrs. Armstrong are presumed to hold the non-home property as joint tenants by the entirety, unless the instrument conveying property to them expresses otherwise. We must develop whether Mrs. Armstrong will consent to her husband's sale of his interest before we can determine whether Mr. Armstrong has a countable resource.
Alabama, Georgia, and South Carolina: Each is free to dispose of his or her one-half interest in the property, and Mr. Armstrong would be ineligible (conditional benefits).
Kentucky and Mississippi: It will be necessary to see if the deed shows tenants by the entirety. If the instrument granting the non-home property to Mr. and Mrs. Armstrong does not expressly create a mutual right to the entirety by survivorship or state they jointly own the property with the right of survivorship, then each is considered free to dispose of his one-half interest in the property, and would be ineligible. If the instrument does have this language (or in Mississippi, language indicating survivorship, joint tenancy, or tenancy by the entirety), then it shows that the Armstrong's are tenants by the entirety, and it is necessary to develop whether Mrs. Armstrong will consent to her husband's sale of his interest before we can determine whether Mr. Armstrong has a countable resource.