Trust & Estate

Estate Planning can be affected by Joint Ownership of Real Property

Estate Planning
Estate Planning

When it comes to drafting your estate plan, there is no “one size fits all” plan. If you jointly own real estate in Massachusetts, the type of joint ownership may affect your estate planning.

The three types of Joint Ownership in Massachusetts are Tenancy in Common, Joint Tenancy, and Tenancy by the Entirety. Each type of joint ownership can affect your estate in various ways, and it is important to seek legal counsel to understand the benefits and consequences of each type of ownership to create the appropriate mechanism to transfer title for estate planning purposes.

In a Tenancy in Common, each owner holds an individual, undivided fractional ownership interest in the property. Each owner has the right of entry, occupation, enjoyment, and transfer of his ownership interest. Because there is no right of survivorship (title does not automatically pass to the other tenants) with this type of ownership, upon the death of one tenant, his interest will pass by will or intestacy. This means that a probate will be necessary to transfer the title to his beneficiary, unless his interest is held in trust.

A Joint Tenancy provides for a right of survivorship, and as such, upon the death of one joint tenant, the remaining joint tenant(s) take title by operation of law. This type of tenancy is convenient because it avoids probate, and the joint owners can handle the financial affairs of an incapacitated joint owner. Creditors of only one joint tenant can, however, obtain a judgment and levy the entire property.

A Tenancy by the Entirety is a form of joint ownership only available to married couples that includes a right of survivorship. The purpose of this type of ownership is to protect a married couple’s right to live in the home against a creditor’s claim against one spouse. Once a couple divorces, the tenancy is severed and the former spouses own the property as tenants in common.

Find out what your options are here!

Family Law

Can a divorced parent who has physical custody remove a child out of the Commonwealth of Massachusetts?

Massachusett's State House, State House, Commonwealth of Massachusetts
Commonwealth of Massachusetts State House

Can a divorced parent who has physical custody remove a child out of the Commonwealth of
Massachusetts? The simple answer is not without permission from the other parent or the Court. If you
do not have physical custody of the child and you do not consent to the move, the custodial parent must
“show cause” to the Court before removing the child. In other words, the Court will determine (1)
whether removal of the child would provide a real advantage to the custodial parent, and (2) if removal
is in the best interest of the child. The custodial parent must show three things: (1) they have a good
reason for moving, (2) their intent is not to deprive the noncustodial parent, and (3) the removal is in
the child’s best interest.

In the 2016 case Marci Rosenwasser v. Ronald Rosenwasser 1 , the Father, who had physical custody of his
daughter, asked the Trial Court to move with his child to Florida. The Trial Court determined that
although removal of the child was advantageous to the Father, removal was not in the best interest of
the child because the mother was unable to have suitable visitation with the child. The Father appealed
the Trial Court’s decision. The Appeals Court agreed that the Father was able to show that moving to
Florida was advantageous to him because it would improve his financial circumstances and allow his
family and friends to provide emotional and physical support to him and the child.

The Appeals Court, however, disagreed with the Trial Court regarding whether the move to Florida was in the best interest of the child, and determined that disruption in visitation of the parent without custody does not automatically outweigh the advantages that moving would have on the parent with custody. The
Appeals Court sent the case back to the Trial Court and instructed the Trial Court to consider the
Father’s interests, the impact of economic and emotional benefits on the child’s quality of life, the
child’s needs, the child’s relationship and routine with both parents, and the reasonableness of the
proposed parenting plan.