When property is owned by more than one person, it may be owned with or without the right of survivorship. Persons who own property without the right of survivorship are called tenants in common. Each tenant in common owns a percentage of the property. For instance, if you and your spouse own your home as tenants in common, you each own half, or 50%. Persons who own property with the right of survivorship are called joint tenants, or joint tenants with the right of survivorship. Spouses who own as joint tenants are sometimes called tenants by the entirety. Each joint tenant owns an undivided interest in the whole property. This means that each person actually owns the whole property at the same time.
When a joint tenant dies, the surviving owner automatically owns the whole property. When a tenant in common dies, his or her interest transfers according to his or her will. This is important because property can avoid probate if owned as joint tenancy with right of survivorship. However, property jointly owned may still be considered for tax purposes.
In West Virginia, property that is acquired by a married couple is not automatically considered a joint tenancy or tenancy by the entirety. The deed must expressly state that the right of survivorship is intended. If there is any question as to whether ownership is a joint tenancy or tenancy in common, the court will presume that the parties held ownership as tenants in common. That presumption can only be overcome by clear and convincing evidence showing that the intention of the parties was to create a joint tenancy with the right of survivorship.
Furthermore, if one joint tenant transfers or sells his or her interest, survivorship is destroyed. The property then is held as a tenancy in common.
For more information, see: W. Va. Code §§ 36-1-19 to -20 (2014);W. Va. Code §§ 44-1-14 (2014); Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992) (abrogated in part by State v. Mckinley, 764 SE 2d. 303 (2014) but only relating to “the footnote” issue); John W. Fisher, II, Joint Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights, 91 W. Va. L. Rev. 267 (1989), available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/wvb91&div=20&id=&page= (last visited June 12, 2015); 5A Michie’s Jurisprudence Cotenancy §§ 2, 3, 7 (2009).