Deed Created a Joint Tenancy, Not a Tenancy in Common

The Kansas Court of Appeals rules that a deed of property created a joint tenancy despite the tenants' radically unequal interests in the property and the absence of customary language used to create a joint tenancy. Thus, the property passes outside of probate and escapes estate recovery. In re Estate of Ruth I. Lasater (Kan. Ct. App., No. 88,218, Sept. 6, 2002).

On September 28, 2000, Ruth I. Lasater signed a deed transferring her home from herself to herself and her son, E. Bruce Lasater, as joint owners. Under the terms of the conveyance, Mrs. Lasater had a 99 percent interest in the property and her son a 1 percent interest. However, the deed stated that the unequal interest should not be interpreted 'in a manner which would defeat the survivorship rights of the surviving joint tenant to succeed to a predeceased joint tenant''s ownership interest in said property." Following Mrs. Lasater's death in February 2001, the Department of Social and Rehabilitation Services (SRS) made a claim for reimbursement of $5,703.41 in medical expenses paid by Medicaid on her behalf. The trial court determined that title to Mrs. Lasater''s home, which was her only significant asset, passed to her son outside her probate estate by virtue of his right of survivorship as a joint tenant. The SRS appealed, claiming that Mrs. Lasater actually created a tenancy in common because her intent to create a joint tenancy was unclear and because the different percentage interests violated the unity of interest required of joint tenants.

The Court of Appeals of Kansas affirms, ruling that Mrs. Lasater created a joint tenancy with right of survivorship between herself and her son. The court acknowledges that the deed''s grant language is more consistent with a tenancy in common and that Mrs. Lasater failed to use the "magic words" for the usual creation of a joint tenancy. However, the court notes that she used the words "joint tenant" or "joint tenancy" five times in the deed's habendum clause. The court also rules that there is no prohibition against cotenants having such lopsided interests in property as is the case here.

For the full text of this decision, go to:https://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2002/20020906/88218.htm.