James Mitchell owns a home at 100 N. Main Street, Anytown, Anystate with his wife, Wanda. The deed reads “to James Mitchell and Wanda Mitchell, his wife, as joint tenants with right of survivorship and not as tenants by the entirety.”
James and Wanda have three adult children, Jim, John, and Dan.
Assume the deed was drafted correctly and that they do not live in a community property state.
a. James dies survived by Wanda. What are the respective rights of Wanda, Jim, John, and Dan in the property, if any?
b. James dies, but Wanda has already predeceased him. What are the children’s respective interests in the property?
c. How would scenarios a & and b change if the deed specified “James Mitchell and Wanda Mitchell, his wife, as tenants by the entirety”?
d. How would scenarios a & and b change if this was a community property state and the deed stated “James Mitchell and Wanda Mitchell, his wife”?
a. The house belongs to Wanda by operation of law. The children do not receive any interest in it.
b. The children presumably will receive the property upon James’s death either by intestate succession or by will, assuming James left everything to all three children. James could have a will and does not have to leave the house to any of the children however.
c. In those states that have tenants by the entirety, the house would still belong to Wanda upon James’s death in scenario a, and the outcome would also be the same in scenario b.
d. In scenario a, Wanda would keep her share/portion of the house and the other portion of the house would belong to the children by operation of law under the community property laws unless there was a will leaving the property to Wanda in which case James’s share would pass to her under the will. In scenario b, the scenario would not change.
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