Homeowner worried about current, future ramifications of current title on record

We had another deed made and notarized as joint tenants with rights of survivorship deed but did not record it, and we keep it in our safe deposit box. Will this deed be valid when one of us passes away if it is not recorded?

A: We’re not sure why your lender would not allow you and your boyfriend to own your home as joint tenants with rights of survivorship. You should be able to choose the way you own property.

When you own a home as joint tenants with rights of survivorship, upon the death of one of the owners, the other owner automatically becomes the sole owner of the home. If you have more than two owners that own the home as joint tenants, the surviving owners become the sole owners of the home, shared equally between them.

On the other hand, when you own a home as tenants in common, and one of the owners dies, that person’s share of the home goes to the person designated in that person’s will. If the owner dies intestate, without a will, then the decedent’s share of the property would be disposed of as set forth under the probate laws of the state in which the property is located.

The way you own this property could have serious repercussions for you and your boyfriend. If your boyfriend dies, his share of the home might not go to you. If he has a will, his share of the home would go to the person designated in his will. If his will names his parents as the beneficiaries of all of his assets, his parents may end up as co-owners of the home with you.

In general, if a couple is married and one spouse dies, the surviving spouse may end up with some interest in the deceased’s interest in the home. For example, when a husband dies without a will and the home was owned as tenants in common, the surviving spouse may be entitled to a one half interest of the husband’s ownership of the home. If the surviving spouse owned the other half of the property, she might end up owning three-quarters of the property. The other quarter ownership interest would pass to the deceased spouse’s kids or relatives.

Because you aren’t married, if your boyfriend dies intestate, the local probate court will split up his assets according to state law. Typically his parents and siblings would get everything. If he has children (with you or with someone else), then his children and his parents would each receive a share of his assets.

While California residents no longer qualify as common law spouses, our column reaches a national audience, some of who live in states that do. According to the National Conference of State Legislatures, there are eight states (Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah) that recognize common law marriage by statute. There are two (Rhode Island and Oklahoma) that recognize it in case law but not by statute, although Oklahoma requires a marriage license. And, six states (Pennsylvania, Ohio, Indiana, Georgia, Florida and Alabama) that once allowed it and will recognize a common law marriage that happened before a certain date.

If you qualify as a common law marriage in your state, you will have to make sure that you document the marriage as required by state law in order to receive the benefits of that status.

It’s clear you’re both worried about the current and future ramifications of the way you hold title. In your email, you mentioned that you both signed a deed placing the two of you as joint tenants with rights of survivorship to the home. Nice try, but unless you record the deed, we see that as a big risk in your estate planning. While the lender may not have allowed you to hold title to the home as joint tenants when the loan closed, recording the deed would retitle the property into joint ownership with rights of survivorship. What’s holding you back from doing that?

Given your situation, it might be a good idea to talk to an estate planning attorney. The attorney can assist you in drawing up valid wills. That way, your assets will go to the people you want should either one of you die. The joint tenancy deed might take care of the home, but as you’re not married, dying intestate means your other assets will be distributed according to state statute.

For example, if either of you forget to designate a beneficiary on any security, retirement plan, life insurance policy, or bank account, and one of you dies, those assets may end up going to a family member and not your partner.

And often, in the fog of grief, some people forget what they have done with their documents. Intentions don’t really matter after someone dies. If you don’t record a document, someone might question the validity of the document, and negate the intention.

In some states, you can claim that the simple execution and delivery of the deed was sufficient to create a joint tenancy between the two of you. But would you want to risk that if your state requires the deed to be recorded? The estate attorney can clarify that for you, but we’d prefer that you each have your wills in place and to record the joint tenancy deed, if possible.

No one likes to think about death or accidents. But the last few years of the pandemic have taught us that you can’t assume anything. So whether one of you gets hit by a bus or you both do, the best thing is to make sure your estate is in order. Don’t leave it to chance. Get some help and do it right from the start. And then make sure your family (or a trusted friend) know who your attorney is and where the paperwork is located.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through their website, bestmoneymoves.com.)