(65) However, as mentioned above, this would not affect the shared exclusivity of their right of possession, as unity of possession applies equally to joint tenancies
and tenancies in common.
(31) The four unities, present from the earliest descriptions of joint tenancies
, persist in modern law.
The downside of joint tenancies
is their tax implications.
Severance of joint tenancies
, as I mentioned above, is number 10.
differ in effect from joint tenancies
primarily in that they do not
section 25.2518-2 (c)(4)(ii) provides a special rule with respect to joint tenancies
between spouses and tenancies by the entirety in real property created after 1976 but prior to 1982.
However, a post-mortem planning opportunity may exist in cases involving unilaterally severable joint tenancies
, by which the decedents unified credit could be utilized to a greater advantage.
The three common forms of joint tenancies
are: tenancy in common, joint with rights of survivorship and tenancies by the entirety.
Thankfully, on December 31,1997, almost one and one-half years after issuing the proposed regulations, the IRS promulgated final regulations with regard to disclaiming joint tenancies
. Under the final regulations, the survivorship interest in JTWROS and TBE property can be disclaimed within nine months of the date of death of the first joint tenant to die, regardless of whether such survivorship interest is unilaterally severable. Generally, the survivorship interest is deemed to be a one-half interest in the property, "regardless of the portion of the property attributable to consideration furnished by the disclaimant and regardless of the portion of the property that is included in the decedent's gross estate under [sections] 2040."
Although there are no gift tax consequences between spouses, non-spousal joint tenancies
that are not revocable (as is normally the case), will constitute a taxable gift to the extent the non-spousal joint tenant's undivided share of the joint tenancy property constitutes a gift in excess of the $10,000 annual exclusion.
These include a provision denying qualification for the normal tax treatment of joint tenancies
held between husband and wife.
The Service's new position opens the door to postmortem estate planning in situations in which joint tenancies
with right of survivorship or tenancies by the entirety would otherwise have undesirable estate tax consequences.