Class 8 Concurrent Estates

PROPERTY
Concurrent estates
© Professor Joan C. Williams
Spring 2013

RAP REVIEW

Name the estates created
In Jan. 1, 2000, “To A for life, then to A’s first
child to reach the age of 25.” A has two kids
• A –life estate
• A’s first child – contingent remainder in fee
• O –reversion
Now apply RAP

(1/1/2000) A, A’s first child to each
25, and all humanity

(12/30/2000) Child of A born after the
grant

12/31/2000 Everyone alive at
the time of the grant dies

RAP
• SO…Afterborn will reach the age of 25 in
2025, more than 21 years after all lives in
being plus 21
• Grant to him violates RAP

So…. After RAP
• “To A for life, then to A’s first child to reach
the age of 25.”
– A – life estate
– A’s first child – contingent remainder in fee
-- O reversion
AFTER APPLICATION OF RAP
-A has a life estate
-O has a reversion

Name the estates created
In Jan. 1, 2000, “To A for life, then to A’s widow for
life, then to A’s surviving children.” A is married to
Jane, and has three kids
• A –life estate
• A’s widow – remainder in a life estate
• A’s surviving child – contingent remainder in fee
• O –reversion
• A
Now apply RAP

(1/1/2000) Time of the grant

Alas….
Jane dies a few
months later

(1/1/2020) A marries afterborn, Sue, who has a child

1/2/2020 Everyone alive at
the time of the grant dies

What now?
• She has her life estate
– She could live on for another 30 years, dying
in 2050.
• Kids’ interest violates RAP
– Because if Sue did live that long, their interest
would vest later than lives in being (everyone
alive at the time of the grant died in 2020)
plus 21 years

Hensley-O’Neal v. Metropolitan
• Option
• Pre-emptive right

CONCURRENT ESTATES

Locke revisited
• Think back to nature narrative: acorns in the wild
• Presumption that property will be individually
owned
• Is most property in the U.S. individually owned?
• No
• Corporations
• Partnerships
• Houses owned by couples
• Natural resource leases
• Intellectual property

Types of concurrent estates:
general categories
• Joint tenancy and tenancy in common
– What is the difference?
• Joint tenancy = 4 unities: time, title, interest, possession
– Links 2 characteristics that are logically independent
• Tenancy in common
– Default category: why did the default category shift over time?
• Tenancy by the entirety
– Fifth requirement
– Presumption
– Cannot sever or partition without consent of other
– Purpose?

Advantages of the joint tenancy
• Poor man’s will
– Avoids probate, reduces administrative costs
and publicity
• Preferential state tax treatment
• Symbolism in marriage
• Sometimes free from claims of creditor of
other spouse
• Avoids fragmentation of property

“We are joint together…”
• What kind of estate did each lottery winner
win?
• “To A, then to the children of B.” B has 3
children
• What estate do the children of B get?

In California, for spouses/
domestic partners
• Tenancy by entirety abolished in Calif.
– Community property
– Community property with right of survivorship
• What’s the difference?
• Functional equivalent to tenancy by the entirety
– Co-owner cannot sever or alienate without partner’s
agreement
– Presumption of community property if owners are
married couple

Problem
• Bill and Cindy are buying a house
together. She asks you how they should
take title. Interview her to get the
information you need to make a
recommendation.

Problem
• Your client, Sue, who is a lesbian, consults
you to plan her estate. She wants to leave
all of her property to her life partner, Jill.
Their state prohibits gay marriage.
Recommend an estate plan.

Problems
• “To A and B jointly.”
• Sufficient to overcome presumption in
favor of TIC?
• “To A and B as JT with right of
survivorship and not as TIC.”
• Joint tenancy in every state, in every
context

Problems
• “To A, a 1/3 undivided interest, and B, and
2/3 undivided interest, as JT.”
• Is it a joint tenancy?
– Time
– Title
– Interest
– Possession

Problems
• “A and B are TIC with equal shares. A
dies intestate, leaving equal shares to X, Y
and Z.” Who owns what?
A + B as TIC
/ | \ 1/2
| | |
X Y Z
1/6 1/6 1/6

Problems
• “A and B are JT with equal shares. A dies
intestate, leaving equal shares to X, Y and
Z.”
• B owns it all

Problems
• A, B and C are JT. A conveys his interest to X.
A dies intestate, leaving an heir, AH. How is title
now held?
• B and C are JT (2/3); TIC with X (1/3).
• Then X dies intestate, leaving an heir, XH.
• B and C are JT (2/3); TIC with XH (1/3).
• B then dies intestate, leaving an heir, BH.
• XH (1/3) is TIC with C (2/3).
• C then dies intestate, leaving an heir, CH.
• XH (1/3) is TIC with CH (2/3).

DV
• Husband murders wife after she moves
into a shelter with their kids.
• House=JT
• H conveys house to his attorney
• Kids’ guardian sues

Arguments
• For wife
• Severance
• Public policy
• Barred from profiting
• Domestic violence
• Legal fiction
• For husband
• Not profiting from his
crime: he had full
legal ownership
before the crime
• No forfeiture of
estates
• He’s paying his debt

Uniform Simultaneous Death Act
• Where there is no sufficient evidence that
two joint tenants…have died otherwise
than simultaneously, the property so held
shall be distributed one half as if one had
survived and one half as if the other had
survived….

Alma Soul
• What’s going on here?

Non-marital “divorce”
• Quasi-marital relationship (“palimony”)
• Presumption can be overcome by
– Oral contract
– Implied contract
– Breach of fiduciary relationship