SMOLEN VS. SMOLEN (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The Nevada Supreme Court addressed whether a divorce decree provision that community property 'shall remain in joint tenancy' prohibits a joint tenant from later unilaterally conveying his interest and severing the tenancy. The court held it does not. Surveying the common-law attributes of joint tenancy, the court reiterated that creation historically required the four unities (interest, time, title, and possession) and that destruction of any unity leaves a tenancy in common. See Tenhet v. Boswell, 133 Cal. Rptr. 10, 13 (Ct. App. 1976). Severance extinguishes the estate's principal feature, the right of survivorship, which is a 'mere expectancy' contingent on survival and on the estate not having been severed by voluntary conveyance, partition, involuntary alienation, or other severing act. Riddle v. Harmon, 162 Cal. Rptr. 530, 531 (Ct. App. 1980) (quoting Tenhet, 133 Cal. Rptr. at 14). At common law, each joint tenant has the indisputable right to convey his interest without the other's knowledge or consent, thereby terminating the joint tenancy. The court noted it has long recognized these common-law attributes while abandoning strict adherence to the manner of acquisition. Mullikin v. Jones, 71 Nev. 14, 24, 278 P.2d 876, 880 (1955); see NRS 111.065. Applying these principles, the court held that the decree's directive that the property 'shall remain in joint tenancy' created a joint tenancy 'replete with all characteristics attributable to this estate under the common law,' including the power of unilateral transfer and severance. Because the decree's language did not prohibit future transfer or alienation, Martin's May 31, 1995 deed to his trust validly severed the joint tenancy and created a tenancy in common between Roslyn and the trust; upon Martin's death his interest passed through the trust to Jason as a tenant in common with Roslyn. The transfer violated neither the common law nor the divorce decree. The district court's order cancelling the deed contradicted the common-law rule that such a transfer is valid, and the court reversed and remanded for issuance of a new order.

In plain language

Martin and Roslyn Smolen married in 1970. After Martin was diagnosed with a brain tumor and his health declined, the couple divorced in 1994 - on a lawyer's advice - to protect their assets from anticipated medical costs. The 1994 divorce decree divided their property and ordered that their Las Vegas home 'shall remain in joint tenancy,' reflecting their wish that whoever survived would keep the house. Martin and Roslyn kept living together for nine months after the divorce, but Martin's health kept getting worse and he was later diagnosed with dementia and other conditions. Roslyn obtained a temporary guardianship over Martin without his knowledge and placed him in a group home against his wishes. Martin reached out to his nephew, Jason (a lawyer), got the guardianship revoked, and was found competent. Martin then set up a trust naming Jason as beneficiary and, by a deed dated May 31, 1995, transferred his interest in the home into that trust. Martin died in October 1995. After Martin's death, Roslyn asked the court to cancel Martin's deed, arguing the divorce decree's 'joint tenancy' language locked in the survivor's right to the whole house and barred Martin from transferring his share. The district court agreed and cancelled the deed. Jason appealed. The Nevada Supreme Court reversed. It explained that a joint tenancy carries with it, under long-standing common law, the power of any joint tenant to transfer his own share at any time - even without the other's knowledge or consent - which severs the joint tenancy and ends the right of survivorship. The divorce decree created an ordinary joint tenancy and said nothing prohibiting a future transfer. So when Martin deeded his share to his trust, he lawfully severed the joint tenancy, turning it into a tenancy in common. His half passed through the trust to Jason, who became a co-owner (tenant in common) with Roslyn. Because Martin's transfer violated neither the common law nor the divorce decree, the court reversed the order cancelling the deed and sent the case back for a new order.