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Title Affects Community Property Rights in AZ | Hildebrand Law, PC

Posted on : July 12, 2016, By:  Chris Hildebrand
Title to a Home Affects Community Property Rights in Arizona

Title to a Home Affects Community Property Rights in Arizona

In Arizona, property acquired by a married couple is presumed to be community property rather than a property held as a tenancy in common. Is it possible for a married couple to acquire property as joint tenants with the right of survivorship? In In re Baldwin’s Estate, 71 P.2d 791 (1937), the Supreme Court of Arizona reviewed an appeal raising this very issue.

Facts of the Case

Mr. Baldwin and Mrs. Baldwin were married. Their marriage ended when Husband died. During their marriage, they bought property that was granted to them as joint tenancy with the right of survivorship.

After Husband’s death, his son filed his Father’s will in court, asking to be appointed an administrator. He told the court that Mr. Baldwin died leaving a one-half interest in two pieces of property. Wife objected to the probate. She filed notice that the property was held by the couple as joint tenants with the right of survivorship. Therefore, on Mr. Baldwin’s death, she owned 100% of it and no probate was necessary. The probate court agreed and this appeal followed.

Learn How Title Effects Community Property Rights in Arizona from Our Arizona Licensed Attorney Chris Hildebrand of Hildebrand Law, PC.

Married Couples and Joint Tenancy in Arizona

Son argued that, under the language of Arizona law, his father and Mrs. Baldwin could only hold property as community property. The law, Mr. Baldwin’s son claims, gives married people only two ways to hold property:

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(1) They can own it together as community property.

(2) They can own it separately as separate property.

The Court walked through the various laws that have been in place on this subject. It found that the legislature intended to allow spouses to hold property in joint tenancy with rights of survivorship. This means that the surviving spouse immediately owns 100% of the property.

It noted that either spouse during a marriage may give his or her interest in community property to the other. Therefore, there is no reason they cannot agree among themselves about how they want it conveyed to them.

Both Spouses Must Agree

Taking property as joint tenants is an exception to Arizona’s community property rules. Slipping a joint tenancy clause into a deed could deprive an unknowing spouse of community property rights.

For example, it could deprive a spouse of the right to devise her one-half share to another person.

The Court ruled that a deed granting property to a married couple as joint tenants could be effective. However, the spouse must show clear evidence that both spouses wanted that result. This evidence might be a handwritten acceptance of the terms by the couple.

It might also be an endorsement by the recorder that it was placed on record at the request of the deceased spouse. However, it can also be established by any other proper evidence.


The Supreme Court reversed the ruling and sent the case back to the probate court for further action consistent with this decision.

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Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.




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