Nebraska Divorce & Joint Tenancy Laws

By Erika Johansen

In a joint tenancy, multiple owners hold property at the same time. In some states, a joint tenancy between a husband and wife may be severed, or ended, by divorce. However, Nebraska is not one of these states.

Nebraska Joint Tenancy

Under Nebraska law, joint tenancy requires that multiple owners hold a piece of property in equal parts, each with equal rights to use and enjoy the property. For instance, three joint tenants may each own a third of a piece of property, but they can't hold it 20/40/40. Nebraska law also grants joint tenants a "right of survivorship," meaning that when one of the joint tenants dies, the joint tenancy itself survives, and the surviving tenants continue to hold the property in equal parts. For instance, if Jim, Andrew and Mark hold property in joint tenancy, and Mark dies, Jim and Andrew now hold the property as joint tenants, each with an equal 50 percent share.

Tenancy by the Entirety

Many states have a specialized form of joint tenancy, known as tenancy by the entirety, which is created only when a husband and wife acquire a piece of property as joint tenants. In a tenancy-by-the-entirety situation, the couple's divorce will effectively sever, or end, the joint tenancy. However, Nebraska law does not recognize tenancy by the entirety, so married owners will hold their property in joint tenancy, subject to the same rules as other joint tenants.

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Creation of a valid joint tenancy requires four legal "unities": time, title, interest and possession. Each tenant's interest must be created at the same time and by the same instrument (title), the interests must be of similar type and duration, and each interest must grant similar rights to possess and enjoy the property. The destruction of any one of these unities legally severs the joint tenancy, typically resulting in a tenancy-in-common. Tenancies-in-common share some structural similarities with a joint tenancy, but do not include a right of survivorship. A joint tenancy may be severed by the sale or mortgage of the tenancy property, or a lawsuit known as partition, which legally divides the property.

Effect of Divorce

Because Nebraska does not have tenancy by the entirety, a married couple's joint tenancy is not severed automatically by initiating divorce proceedings. Divorcing couples must take legal action to sever their tenancy, and usually do so as part of the divorce process. Complex legal issues may arise when a couple fails to sever the tenancy and one spouse dies during the divorce proceedings; technically, the surviving spouse is still entitled to the entire property, despite the fact that they were planning to get divorced.

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Can Tenancies by the Entirety Go to Probate if a Spouse Dies?


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