The form of deed to be used in a real estate transaction as well as the role the deed plays in the transaction are at the heart of many of the issues clients have. One of the most common problems is what form of ownership should be used when non-married individuals acquire property together; what should the deed say.

I often represent non-married individuals buying property as joint owners; typically a couple engaged to be married buying their first home.  Since they are not yet married, they cannot acquire the property as tenants by the entireties - that category is reserved for husbands and wives. Their choice - owning as joint tenants or joint tenants with rights of survivorship. If they acquire the property as joint tenants - and one of them dies before they marry - the share of the property owned by the deceased will be inherited by the deceased heirs - typically the decedent's family.  If the property is acquired as joint tenants with rights of survivorship - the share owned by the deceased will be inherited by the joint owner - the fiancé. A very different result based on the inclusion of the magic words "with rights of survivorship".

I reviewed a deed recently where a parcel of vacant land was held by two business partners as joint tenants. One partner died and the surviving partner was planning on selling the entire property to a developer and pocketing the net sales proceeds. Unfortunately, the surviving partner did not understand that he and his partner had acquired the property as joint tenants - and not as joint tenants with rights of survivorship. He was quite surprised to learn that the share owned by the deceased partner would be distributed to the heirs of the deceased partner - and that those heirs were now his partners in the deal!