When married couples buy a home in South Carolina, many choose to hold the property as joint tenants with rights of survivorship. This means that if one spouse dies, the other automatically receives full ownership. The property passes outside of probate, saving time and money. However, many people do not realize what happens to this arrangement when they divorce.
Under South Carolina law, a divorce decree automatically severs a joint tenancy between spouses. The property converts to a tenancy in common. As a result, neither spouse retains automatic survivorship rights. Instead, each former spouse holds a separate share that can pass through their estate. This change happens by operation of law under S.C. Code Ann. § 27-7-40(a)(vii). Many divorcing homeowners overlook this critical shift in property rights.
Understanding this conversion is essential to protect your real estate interests during and after divorce. Failing to address your deed after a divorce can create major problems for your estate plan, your mortgage, and your future property rights. If you have questions about your property deed during a South Carolina divorce, contact Klok Law Firm LLC at (843) 216-8860 for a consultation.
Understanding Joint Property Ownership in South Carolina
Before examining how divorce changes your deed, it helps to understand the different ways married couples can hold property in South Carolina. The state recognizes three main forms of joint ownership for real estate. Each form carries different legal consequences for survivorship, severance, and property division.
Joint Tenancy with Rights of Survivorship (JTWROS)
This is the most common form of survivorship ownership among married couples. To create this arrangement, the deed must include specific language after both names: “as joint tenants with rights of survivorship, and not as tenants in common.” This statutory language comes from S.C. Code Ann. § 27-7-40, enacted in 2000. Both owners hold equal shares. When one owner dies, the survivor automatically takes full ownership without probate.
A key feature of joint tenancy is that it can be severed by the action of just one owner. The South Carolina Supreme Court made this clear in Smith v. Cutler, 366 S.C. 546, 551, 623 S.E.2d 644, 647 (2005), where it held that “a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one joint tenant.” Either spouse can sell or convey their interest to a third party. Divorce also severs the joint tenancy by operation of law.
Tenancy in Common
Tenancy in common is the default form of co-ownership in South Carolina. The Supreme Court has long favored this arrangement. In Smith v. Cutler, 366 S.C. 546, 549, 623 S.E.2d 644, 646 (2005), the court explained that “[c]ourts began favoring tenancies in common over joint tenancies because the harsh results of survivorship rights often encumbered the land and defeated the intention of the grantor.” A deed without survivorship language creates a tenancy in common by default.
Under this form of ownership, each owner holds a separate fractional interest. Shares can be equal or unequal. There is no right of survivorship. When one owner dies, that person’s share passes through their estate by will or intestacy laws. This is the type of ownership that results after a divorce severs a joint tenancy.
Tenancy in Common with Indestructible Right of Survivorship
South Carolina also recognizes a third, less common form of ownership. The Supreme Court first established this estate in Davis v. Davis, 223 S.C. 182, 191–92, 75 S.E.2d 46, 50 (1953). The court created this estate because South Carolina did not permit husband and wife to hold property as tenants by the entirety. As the court explained, “while a right of survivorship is not incident to a tenancy in common, the parties may create one if they so desire.” Id. at 191, 75 S.E.2d at 50.
The Supreme Court then reaffirmed and expanded on this holding in Smith v. Cutler, 366 S.C. 546, 550–51, 623 S.E.2d 644, 646–47 (2005). There, the court observed that “the future interests created by a tenancy in common with a right of survivorship were indestructible—i.e. not subject to defeat by the unilateral act of one cotenant.” Id. at 550, 623 S.E.2d at 646 (citing Davis, 223 S.C. at 187, 75 S.E.2d at 48). The specific deed language for this arrangement references ownership “for and during their joint lives and upon the death of either of them, then to the survivor of them.” Smith, 366 S.C. at 551, 623 S.E.2d at 647.
Unlike a standard joint tenancy, this form of ownership cannot be severed by the unilateral act of one owner. Neither owner can independently sell their interest or force a partition. The Smith court drew a clear distinction: “Unlike a tenancy in common with a right of survivorship, a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one joint tenant.” 366 S.C. at 551, 623 S.E.2d at 647. Property held as tenants in common with an indestructible right of survivorship, on the other hand, “cannot be defeated by the act of one tenant absent the agreement of the other tenant.” Id.
It is important to note that South Carolina does not recognize tenancy by the entirety, which is a form of joint ownership available to married couples in many other states. As the Davis court recognized, the absence of tenancy by the entirety in South Carolina was the very reason it created the tenancy in common with indestructible right of survivorship. Davis, 223 S.C. at 191–92, 75 S.E.2d at 50. Couples moving to South Carolina from states that recognize tenancy by the entirety should review their deeds with an attorney to understand how South Carolina law applies to their property.
The Law: How Divorce Severs Joint Tenancy
South Carolina’s severance rule is set out in S.C. Code Ann. § 27-7-40(a)(vii). The statute provides:
“Any joint tenancy in real estate held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage and vests the interest in both the parties as tenants in common, unless an order or decree of a court of competent jurisdiction otherwise provides.”
This statute has several key elements. First, the severance is automatic. It happens by operation of law when the divorce decree is filed. Second, the conversion only applies to joint tenancies between husband and wife with no other joint tenants. Third, the family court has the power to override this default rule through its divorce decree.
In practice, this means that the moment a South Carolina court files the order dissolving your marriage, your joint tenancy deed no longer functions as it did during the marriage. The survivorship feature is gone. Each former spouse now holds their interest as a tenant in common. The Supreme Court referenced this statutory severance mechanism in Smith v. Cutler, 366 S.C. at 551, 623 S.E.2d at 647, citing § 27-7-40(a)(vii) as one of the statutory provisions showing that a joint tenancy “is capable of being defeated.”
What Changes When Joint Tenancy Converts to Tenancy in Common
The conversion from joint tenancy to tenancy in common has major legal consequences. Understanding these changes is critical for protecting your property rights after divorce.
Loss of Survivorship Rights
The most significant change is the loss of automatic survivorship. During marriage, if one spouse died, the surviving spouse automatically received full ownership. After the conversion, each former spouse’s share passes through their estate. This means your ex-spouse’s heirs, beneficiaries, or creditors could end up with an ownership interest in property you occupy.
Separate Ownership Interests
As tenants in common, each former spouse holds a distinct, undivided interest. Either party can sell, mortgage, or transfer their share without the consent of the other. A new spouse, a creditor, or even a stranger could become your co-owner if your ex-spouse sells or loses their interest.
Partition Actions
Either former spouse can file a partition action to force the sale of the property. Under S.C. Code Ann. § 15-61-10, any tenant in common has the right to petition the court to divide or sell jointly held property. The Smith v. Cutler court confirmed this point, noting that “property held in joint tenancy is subject to partition” under § 15-61-10. 366 S.C. at 551, 623 S.E.2d at 647. This means your ex-spouse could force you out of a home you thought was secure.
Estate Planning Complications
If you do not update your estate plan after divorce, your interest as a tenant in common passes through probate. Without a valid will, South Carolina’s intestacy laws determine who inherits your share. This could result in your children, your parents, or other relatives becoming co-owners with your former spouse.
Property Division in Divorce: Equitable Distribution
While the joint tenancy statute determines how title converts, the family court’s equitable distribution process determines who actually gets the property. Under S.C. Code Ann. § 20-3-620, South Carolina family courts divide marital property using an equitable, not equal, approach. The court considers fifteen statutory factors when deciding how to divide marital assets.
Marital property includes all real and personal property acquired during the marriage. Under S.C. Code Ann. § 20-3-630, this definition applies regardless of how legal title is held. Even if only one spouse’s name appears on the deed, the property may still be marital if it was purchased during the marriage. For more details on property classification, see our guide on How Separate Property Becomes Marital in South Carolina Divorce.
Key factors the court considers include the length of the marriage, each spouse’s contributions to acquiring the property, the income and earning potential of each spouse, and the desirability of awarding the family home to the parent with custody. The court may order one spouse to buy out the other’s interest, order the property sold and proceeds divided, or award the property to one spouse as part of the overall distribution.
Exceptions: When the Court Can Override the Default Rule
The statute contains an important exception. It states that the conversion to tenancy in common applies “unless an order or decree of a court of competent jurisdiction otherwise provides.” This means the family court judge can include specific language in the divorce decree that changes the default outcome.
For example, the court might award the property entirely to one spouse as part of the equitable distribution. In that case, the decree would direct one spouse to execute a deed transferring their interest to the other. Alternatively, the court might order the property sold and the proceeds divided between the spouses. The court could also preserve specific ownership arrangements if both parties agree through a settlement.
If you are negotiating a divorce settlement, you should include clear language about the disposition of all real property. Settlement agreements should address who receives the property, when the transfer must occur, and who is responsible for the mortgage and other costs. Working with a family law attorney ensures these details are properly addressed. To learn more about resolution options, visit our page on divorce services at Klok Law Firm.
Other Ways Joint Tenancy Can Be Severed in South Carolina
Divorce is not the only event that severs a joint tenancy. Section 27-7-40 identifies several other methods of severance. One spouse can convey their interest to the other spouse through a new deed. Either spouse can also convey their interest to an unrelated third party. A court order directing the sale of one spouse’s interest severs the joint tenancy as well.
The Smith v. Cutler court referenced several of these statutory severance provisions. See 366 S.C. at 551, 623 S.E.2d at 647 (citing § 27-7-40(a)(v), (vii), and (viii) as “depicting actions that can be taken by one joint tenant to effectively sever the joint tenancy”). Understanding all available severance methods helps you plan effectively during and after divorce.
When a joint tenant dies, the surviving joint tenant must file a copy of the death certificate with the Register of Deeds. This filing confirms that the deceased joint tenant’s interest has passed to the survivor by operation of law. Filing the death certificate promptly establishes a clear chain of title.
Steps to Protect Your Property Rights During Divorce
If you are going through a divorce in South Carolina and own property jointly with your spouse, there are several steps you should take to protect your interests.
Review your deed carefully. Obtain a copy of the deed from the county Register of Deeds office. Check whether the deed says “joint tenants with rights of survivorship” or uses different language. The specific wording determines what type of ownership you hold and how the divorce will affect it. As Smith v. Cutler and Davis v. Davis demonstrate, slight differences in deed language can create entirely different types of property ownership with very different legal consequences.
Address the property in your settlement agreement. Do not leave property disposition vague. Your settlement should specify who receives the property, the timeline for executing a new deed, who pays the mortgage during the transition, and what happens if refinancing is needed.
Record a new deed after the divorce. Even though the statute converts the joint tenancy automatically, the actual deed on file at the Register of Deeds still shows the old ownership. Recording a new deed that reflects the current ownership avoids confusion for future buyers, title companies, and mortgage lenders.
Update your estate plan. Once your joint tenancy is severed, you need a new will or trust to direct how your share of the property passes at death. Without updated estate planning documents, your property interest may pass under South Carolina’s intestacy laws to people you did not intend.
Consider refinancing the mortgage. If the property is awarded to one spouse, that spouse should refinance to remove the other from the mortgage. Simply having a deed in one name does not release the other spouse from the mortgage obligation. Both former spouses remain liable until the loan is paid off or refinanced.
File a lis pendens if needed. If you are concerned your spouse may try to sell or encumber the property during the divorce, you can file a lis pendens with the Register of Deeds. This puts potential buyers and lenders on notice that the property is the subject of pending litigation.
Financial Disclosure and Property Valuation
South Carolina Family Court rules require full financial disclosure in any case where financial matters are at issue. Both parties must file a financial declaration listing all real property, personal property, income, expenses, and debts. For a complete guide to this requirement, see our article on Family Law 101: Financial Disclosure Requirements.
Accurate property valuation is essential for fair division. The family court values marital property as of the date the divorce action is filed. A current appraisal of the home or other real property helps both parties and the court determine a fair outcome. Hidden assets, recent transfers, or disputes about property value can complicate the division process.
Common Mistakes to Avoid
Assuming the deed does not need to change. Even though the statute converts the ownership automatically, the recorded deed still shows joint tenancy language. A new deed should be recorded to reflect the actual ownership after divorce. Title companies and lenders will look at the recorded deed, and outdated language can create delays in future transactions.
Confusing deed ownership with mortgage liability. Many people believe that removing a name from the deed also removes that person from the mortgage. It does not. The mortgage is a separate contract with the lender. Refinancing is typically the only way to remove one spouse from the mortgage obligation.
Forgetting to update beneficiary designations and estate plans. After divorce, review all documents that reference your former spouse. These include wills, trusts, life insurance policies, retirement account beneficiary designations, and transfer-on-death deeds. South Carolina law may automatically revoke some designations after divorce, but not all.
Delaying the property transfer. If the divorce decree awards property to one spouse, the other spouse must execute a deed to complete the transfer. Delays create risk. The longer the property remains in both names, the greater the chance that creditors, liens, or unexpected events complicate the title.
Why You Need a Family Law Attorney for Property Issues
Property division in divorce involves the intersection of family law, real estate law, and estate planning. The automatic conversion of joint tenancy deeds is just one piece of the puzzle. An experienced family law attorney can help you understand your rights, negotiate a fair settlement, and ensure that all property transfers are properly documented.
At Klok Law Firm LLC, we handle all aspects of property division in South Carolina divorce cases. Our team serves clients in Charleston, Mount Pleasant, Berkeley, and Dorchester Counties. Whether you need full representation or limited scope assistance, we can help. Learn more about our unbundled legal services for cost-effective legal help tailored to your situation.
Planning Ahead: Prenuptial and Postnuptial Agreements
Couples can avoid many of these complications by planning ahead. A prenuptial or postnuptial agreement can specify how property will be divided if the marriage ends. These agreements can address real estate ownership, property classification, and the disposition of the family home. For more about these protective tools, visit our page on prenuptial and postnuptial agreements.
Contact Klok Law Firm LLC Today
If you are facing divorce and own property jointly with your spouse, do not wait to get legal advice. The automatic conversion of your joint tenancy deed can have serious consequences for your property rights, your estate plan, and your financial future. Early legal guidance helps you avoid costly mistakes and protect what matters most.
Call Klok Law Firm LLC today at (843) 701-1695 or contact us online to schedule a consultation. Our experienced family law attorneys serve clients throughout the Charleston area, including Mount Pleasant, Berkeley County, and Dorchester County.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Every case is different. Reading this article does not create an attorney-client relationship with Klok Law Firm LLC. Consult a licensed South Carolina attorney about your specific legal situation.