Massachusetts Agencies

Quarterly Questions and Answers

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2006, Volume 5, Number 1

Quarterly Questions and Answers
by Lynne Murphy Breen, Underwriting Counsel

Question: What if both parties agree that they want to sell or refinance the property while a divorce between them is pending?

Answer: A sale or refinance transaction that is agreed to by both parties in writing is permissible pursuant to Supplemental Probate Court Rule 411. Automatic Restraining Order (Rule 411). Please note that Rule 411 prohibits:

(1) Selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) by written agreement of both parties; or (f) by Order of the Court. (Emphasis added.)

Since a prudent conveyancer would be looking for evidence of such a written agreement, it makes sense to memorialize a reference to an agreement. In a sale transaction, the agreement can be memorialized within the deed itself. My colleague, Richard Urban, Esq., has drafted language which may be used to memorialize such an agreement. The language is as follows:

In a deed from both spouses:

“The above Grantors, being the same parties in a _______________________ filed with _______________County Probate Court, Docket No.__________, have mutually agreed with each other to sell the within described property to the within named Grantees pursuant to the terms stated herein.”

In a deed from one spouse:

If the property is being sold, and the record owner is only one of the divorcing spouses, the agreement needs to be obtained from the non-record owner spouse. The non-record owner spouse may join in the execution of the deed and the deed should contain a statement such as:

“_______________and_______________ are married. They are the named parties to a _____________ proceeding filed with ____________County Probate Court as Docket No.____________. The execution of this deed also acknowledges the mutual agreement of the parties to sell the property described herein.”

If the property is being refinanced, both parties need to sign the mortgage. A separate written agreement should be signed by the parties as well, and a reference to the agreement can be memorialized in the Exhibit A.

Question: During a divorce proceeding, is the tenancy by the entirety severed upon the entry of the decree nisi?

Answer: No. A decree nisi does not terminate the relation of husband and wife between parties to the divorce proceeding. Ross v. Ross, 385 Mass. 30, 430 N.E.2d 813 (1982). Where the decree has not yet become absolute, the surviving spouse is entitled to statutory rights in the estate of the deceased spouse. See Rollins v. Gould, 244 Mass. 270, 137 N.E. 815 (1923) and Diggs v. Diggs, 291 Mass. 399, 196 N.E. 858 (1935). It should be noted that the decision in Diggs was superseded by statute and rule as stated in Karp v. Amendola, 28 Mass.App.Ct. 929, 549 N.E.2d 549 (1990), but only with respect to the question of entering a decree absolute nunc pro tunc upon an affirmative petition by one of the parties to do so.

Question: As a result of a divorce, can the titleholders still possess title in the property as tenants by the entirety?

Answer: A divorce will sever a tenancy by the entirety, thereby causing it to become a tenancy in common. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927). The reasons for this are that (i) a tenancy by the entirety can exist only between married persons, and (ii) a joint tenancy can be created only with the use of language to that effect. That leaves, in such a case, the only remaining tenancy, namely a tenancy in common.

Moreover, a divorce will not disturb a joint tenancy when created by appropriate words, because a joint tenancy is not dependent upon the marital status of the parties.

The question, of course, remains whether a deed to married persons as joint tenants would be converted into a tenancy by the entirety. Before 1973 this would have been the case. See Franz v. Franz, 308 Mass. 262, 32 N.E.2d 205 (1941), which established that prior to 1885, a deed to husband and wife without the recitation of any tenancy would create a tenancy by the entirety. But since the passage of Chapter 210 of the Acts of 1973 (amending G.L.c. 184, §7), a deed to two married person as joint tenants will create a joint tenancy and not a tenancy by the entirety, and any subsequent divorce will not affect the theretofore established joint tenancy.

Question: Is there any special considerations relative to the election of tenancy and divorce for same-sex spouses?

Answer: No. Pursuant to Goodridge v. Department of Public Health, 440 Mass. 309 (2003), the laws of tenancy and divorce are applied exactly the same way to same-sex spouses.

Question : What is the effect of a marriage or divorce on a previously executed will?

Answer: A marriage (or remarriage) to an individual other than the spouse they divorced, will revoke a previously executed and existing will unless “it appears from the will” by specific language that the marriage was contemplated. Such language will amend the executed will so as to create and allow a beneficiary in the testator’s spouse. Lacking such a provision or language within the then existing will, the now effectively revoked will deems the decedent to have died intestate. See G.L.c. 191, §9. Simply, these events allow for the testator’s spouse to either receive a gift by directive of the will itself or a claim under the law as the surviving spouse of a decedent who had died intestate.

In situations involving divorce, a will made under the provisions of the Uniform Statutory Will Act (G.L.c. 191B) is not revoked in its entirety as a result of a divorce subsequent to execution. While a divorce or annulment does not revoke a will in its entirety, and grant(s) and gift(s) to the former spouse are deemed void. In such cases, G.L.c. 191, §9 provides that “[p]roperty prevented from passing to the former spouse because of revocation by divorce shall pass as if a former spouse had failed to survive the decedent, and other provisions conferring a power or office on the former spouse shall be interpreted as if the spouse had failed to survive the decedent.” The statute notes, however, that if a will is revoked solely by reason of the operation of the statute (as opposed to another act by the testator), the provisions as to the former spouse shall be revived if the testator and the former spouse thereafter remarry each other.

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