Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, August 26, 2020

South Dakota Supreme Court: Partition Upheld Where Deed Severs Joint Tenancy Of Husband And Wife

JtIn Moeckly v. Hanson, the South Dakota Supreme Court upheld a partition judgment against a surviving spouse where a corrective deed executed by the couple failed to contain express language of joint tenancy and thus created a tenancy in common. 

Sharon and Bennett Hanson were married in December 1994. "On the day they married they entered into an antenuptial contract, which stated: In the event of death of either party, any property, real or personal, jointly held by the parties acquired either prior to marriage or thereafter, shall be that of the survivor."

In 1996, the couple purchased real property in South Dakota, as "joint tenants with right of survivorship and not as tenants in common". This was the lot 13 property. 

In 2006, the couple bought another property in which the deed did not contain any joint tenancy language. 

In April 2007, Thompson, a South Dakota attorney, drafted a warranty deed for Hanson and Sharon that conveyed one of the plots to themselves. This deed also did not contain any language that it would be held as joint tenants. 

Sharon passed away in February 2017. 

Sharon's son and granddaughter were appointed as personal representatives of Sharon's estate in Iowa. Sharon's will stated, "I give, devise and bequeath my one-half interest in and to my current residence which is located at 32193 Ponderosa Drive, Burbank South Dakota, to my children, . . . in equal shares, share and share alike, they to have and to hold the same absolutely and forever in fee."

The personal representatives brought a partition action to have the Lot 13 Property sold and the proceeds split evenly between the estate and Hanson. After a partition hearing, the South Dakota circuit court held that the corrective deed terminated the joint tenancy and created a tenancy in common.

Because the partition was "impractical" there circuit court ordered the property sold and the proceeds divided between the one-half interests held by Hanson and Sharon's estate. 

See South Dakota Supreme Court: Partition Upheld Where Deed Severs Joint Tenancy Of Husband And Wife, Probate Stars, August 12, 2020.


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