(a) Henry and Whitney became tenants in the entirety when they purchased the Hot Springs home in 1981.

A tenancy by the entirety contains the same four “unities” required by a joint tenancy, with the additional fifth unity of marriage. Thus, to create a tenancy by the entirety, there must be unity in 1) Time: Meaning the interest of both the parties arose at the same time; 2) Title, meaning that both of the tenants’ interest was created in the same document of title, 3) Possession, meaning that each tenant has the right to possess the whole of the estate; 4) Interest, meaning that each tenant has an equal interest in the estate; and 5) Marriage. Unlike a joint tenancy, where Virginia requires the words “with rights of survivorship” to be included in the document conveying title, a tenancy of the entirety can be created without such language and the rights of survivorship will be presumed. When one of these unities is destroyed, the tenancy by the entirety is converted to a tenancy in common.

Since Whitney and Henry were married at the time they purchased the home, the title was in both of their names, included rights of survivorship, and was purchased with martial funds, a tenancy by the entirety was created in 1981.

(b) Whitney has a fee simple absolute in Hot Springs. Bonnie has no interest.

Whitney:
Once a tenancy by the entirety is created, it can only be destroyed by the destruction of one of the five unities. The most common case is the destruction of the unity of marriage by a divorce. When this happens, a tenancy by the entirety is converted to a tenancy-in-common. This means there are no longer any rights of survivorship, and further, that each tenant may now do with their interest in the property what they please, as it becomes fully alienable, inheritable, and assignable.

Here, Whitney and Henry’s tenancy by the entirety never became a tenancy in commmon, because they never got divorced. Therefore, at the time of his death, Whitney still had the rights of survivorship. Following his death, Henry’s 1/2 interest in the Hot Springs home went to her, and she is now the owner in fee simple absolute.

Bonnie:
When properties bearing rights of survivorship pass after death, they are non-probate transfers. This means that the rights immediately transfer to the co-tenant and the property is not distributed according to the laws of intestacy or the language of a will. Therefore, Bonnie has no interest in the property.

(c) Henry and Sally were tenants in common for the Roanoke house.

When Henry and Sally purchased the Roanoke house together, they became tenants in common. This sort of tenancy is the default sort of tenancy created when there is an absense of the unities required to create a joint tenancy or tenancy in the entirety. Since Henry and Sally were not married at the time, they could not have entered into a tenancy by the entirety. Further, because the deed made no reference to rights of survivorship, there was no joint tenancy. Therefore this was a tenancy in common.

Tenants in common have equal rights to possess the whole estate. However, unlike joint tenants or tenants by the entirety, each tenants rights are fully assignable, alienable, and inheritable, and there are no rights of survivorship. Therefore, when Henry died, his 1/2 portion goes to his heirs under the laws of intestacy, since he had no will, rather than back to Sally.

(d) Sally has the same 1/2 interest she has had since the time she and Henry became tenants in common; Bonnie has 2/3 of Henry’s interest, and Whitney has the other 1/3 of his interest.

In Virginia, when an individual dies intestate, their surviving spouse will inherit either 100% of their estate, if the decendant had no children from outside, the marriage, or 1/3 of their estate if the decedent did have children outside of the marriage. The decedent’s surviving children would then split the remaining 2/3 of the estate equally. If any of their children had predeceased the decedent, Virginia follows the a system of modern per stirpes distribution, meaning that if the deceased child had any issue, their the share from their deceased parent would be divided evenly among the issue.

Here, Henry has only one spouse and one child from outside the marriage. Since Virginia does not recognize common law marriage (and since he always remained married to Whitney), Sally will not take anything through intestacy. However, she will be able to keep her 1/2 interest in the Roanoke property, and Henry’s death will not affect her interest. Of Henry’s 1/2 interest, 1/3 will go to Whitney and 2/3 will go to Bonnie, his only child.

9a. TENANCY OF THE HOT SPRINGS HOUSE

Henry and Whitney created a tenancy by the entirety with the right of survivorship when they purchased the house in Hot Springs, Virginia. Normally, a joint tenancy will be created when two or more people take an interest in property with the right of survivorship. However, when the two parties are a married couple at the time of purchase, the house was purchased with marital funds, and the couple have not divorced, the interest created is a tenancy by the entirety. The facts here thus point to the tenancy in the Hot Springs house being a tenancy by the entirety.

9b. WHITNEY AND BONNIE’S INTERESTS IN THE HOT SPRINGS HOUSE

Whitney has a 100% interest in the Hot Springs house, and Bonnie has none, because the property was held with the right of survivorship between Whitney and Henry.

Here, as mentioned above, Henry and Whitney were joint tenants with the right of survivorship. When a tenancy with a right of survivorship is formed, and one of the joint tenants passes away, his interest is immediately transferred to the other joint tenant who becomes the full owner of the property. A joint tenancy cannot be conveyed without destroying the right of survivorship, and if it is conveyed, it would turn into a tenancy by the entirety, and if there were more than two joint tenants originally, the other two would remain in a joint tenancy between themselves.

Rights of Survivorship and Intestacy Statutes

In Virginia, where a decedent passes away without a will (dies intestate), the distribution of his estate follows Virginia’s intestacy statute. Because Henry died with no will, his estate will be distributed in accordance with Virginia’s intestacy laws.

Property held in joint tenancy with a right of survivorship is not disposed of by intestacy statutes because the transfer of interest is governed by the joint nature of its tenancy, and a joint tenancy is not part of a decedent’s estate when there is a right of survivorship.

In this case, there are no facts indicating that Henry ever conveyed his interest in the Hot Springs house to anyone. When he passed away, the right of survivorship took over, and Whitney became the full owner of the Hot Springs House. Bonnie has no interest in the Hot Springs house because, even though she will receive some of Henry’s estate via intestacy statutes, the house was no longer part of Henry’s estate the second he passed away.

Whitney has 100% interest in the Hot Springs house, and Bonnie has no interest.

9c. TENANCY OF THE ROANOKE HOUSE

Henry and Sally hold the Roanoke house as a tenancy in common.

Tenancy in Common

In Virginia, a joint tenancy without an explicit statement of the right of survivorship is considered a tenancy in common, in which case each tenant owns a proportional, undivided share of the property with the right to use and possess the entire property. Interests in a tenancy in common are devisable and alienable, and they become part of a decedent’s estate for purposes of intestacy, unlike joint tenancies with the right of survivorship.

Here, Henry and Sally purchased the Roanoke house together, and the deed is in both of their names. However, it lacks the requisite language creating a right of survivorship. As such, it is a tenancy in common, and Henry and Sally each had an undivided half interest in the Roanoke house. There is no right of survivorship.

9d. INTERESTS IN THE ROANOKE HOUSE

Sally owns 3/6 of the interest in the Roanoke house, Bonnie has 2/6, and Whitney has 1/6. They all hold the house as tenants in common with the right to use, occupy, and possess the entire property.

Divorce vs. Legal Separation

When an individual legally divorces from his spouse and then dies intestate, that spouse is treated to have predeceased him, and she is afforded no share of the marital estate under the intestacy statute. However, only divorce or death are sufficient to sever the relationship for purposes of intestacy laws. Separation, even if prolonged, is not sufficient.

Here, Henry and Whitney were separated for nearly 30 years. However, the two never legally divorced, nor did Whitney predecease him. This means that, absent a complete disposition of Henry’s estate through a testamentary instrument, Whitney will be treated as a surviving spouse for purposes of an intestacy determination.

Division of Henry’s Estate

Under Virginia’s intestacy statute, the amount of the estate that passes to a surviving spouse depends on whether the decedent has children and, if so, whether they are shared children with the surviving spouse or not. If shared, then the decedent’s entire estate goes to the surviving spouse. However, if the children are not the children of the surviving spouse, then one-third (1/3) of the estate goes to the surviving spouse, and the remaining two-thirds (2/3) are distributed to the children with per capita distribution with representation.

As established above, Whitney is treated as Henry’s surviving spouse. Bonnie, Henry’s child, is not Whitney’s child. Accordingly, 1/3 of Henry’s estate will go to Whitney, and 2/3 of the estate will go to Bonnie, who does not have to share it with anyone because Henry had no other children.

Sally’s Interest in the Roanoke House

As previously mentioned, Henry and Sally each had an undivided half interest as tenants in common in the Roanoke house. An interest in property held as a tenant in common is included in the decedent’s estate and will pass with the rest of the estate in accordance with intestacy statutes. Sally has retained her one-half interest in the Roanoke home because there was no right of survivorship that would give her a 100% interest in the home. For clarity purposes for discussions to follow, this would be the equivalent of a 3/6 share of the Roanoke house.

Bonnie’s Interest in the Roanoke House

However, Henry’s one-half share of interest in the Roanoke house will be divided in accordance with the intestacy division above. That is, Bonnie will own 2/3 of Henry’s interest in the Roanoke house as a tenant in common with the other tenants. In total, she holds 2/6 of the interest in the Roanoke house.

Whitney’s Interest in the Roanoke House

In accordance with the intestacy statute distribution, Whitney receives 1/3 of Henry’s estate, which means that she has 1/6 of Henry’s interest in the Roanoke house. She holds this interest as a tenant in common with Sally and Whitney, and each of them have the right to use, possess, and occupy the entire house. However, I doubt Whitney will be seeking to assert her right to occupy the Roanoke house.