Estates and probate-Ellis v. Ellis: Survivorship properties in Tennessee remain unaffected by the 120 hour provision of the Tennessee Uniform Simultaneous Death Act

University of Memphis Law Review, The, Spring 2003 by Butler, Eric

Shortly after marrying in 1944, Neil Ellis (Husband) and Virgie Mae Ellis (Wife) executed separate reciprocal wills, each naming the other spouse as the sole beneficiary.1 In April 1998, Wife became conservator over Husband due to his age and deteriorating mental condition.2 On February 11, 1999, Husband died, followed by Wife's death three days later.3 Husband's heirs claimed half of the property the couple held as tenants by the entirety because Wife failed to survive Husband by 120 hours.4 Wife's estate objected, arguing that the entirety property vested immediately in Wife because Husband predeceased her, and he therefore had no interest in the entirety property that could pass through his will.5

The trial court denied the motion of Husband's heirs to intervene in the probate proceedings.6 The Tennessee Court of Appeals affirmed, holding that the entirety property passed outside of probate and that Wife took the property by survivorship in fee simple absolute immediately upon Husband's death.7 The Tennessee Supreme Court held, affirmed.8 The Tennessee Uniform Simultaneous Death Act does not require a spouse to survive by 120 hours before taking fee simple title to property held with the decedent as tenants by the entirety. Ellis v. Ellis, 71 S.W.3d 705, 714-15 (Tenn. 2002).

Two or more people owning the same land at the same time have concurrent estates.9 Concurrent estates can exist in one of three forms: a joint tenancy with a right of survivorship,10 a tenancy in common,11 or a tenancy by the entirety.12 A husband and wife are the only persons who can hold property as tenants by the entirety in Tennessee.13 The husband and wife are viewed as one person, per tout et non per my, meaning each person holds the entire estate through an undivided interest in the whole.14

In 1835, the Tennessee Supreme Court set out the common law treatment of a tenancy by the entirety upon the death of one spouse in Taul v. Campbell.15 In Taul, the wife owned a parcel of land prior to marrying her husband.16 After the marriage, the couple executed a deed of the land in question to a third party.17 The very next day, the third party executed a deed of the land back to the Taul's as husband and wife.18 Shortly after these transactions, the wife died intestate without issue.19 She left only her husband, her brothers, and her sisters as survivors.20 The parties asked the court to resolve the issue of whether the real property in question passed to the husband in fee simple at the wife's death.21

The court in Taul began by examining the nature of the deed back to the Tauls from the third party.22 Analyzing common law principles, the court noted that the husband and wife were viewed as one person in the eyes of the law, and a deed to the husband and wife created in them one estate.23 Relying on earlier common law precedent, the court stated the basic common law rule as follows: "The result of the British and American decisions is the same, without an exception-that husband and wife take one indivisible estate, which continues, after the death of either natural person, the same estate in the survivor . . . ."24 Relying on the common law rule, the court held that upon the wife's death, the husband became the owner of the land in fee simple.25

In 1921, the Tennessee Supreme Court set forth the common law approach to handling the simultaneous deaths of tenants by the entirety in McGhee v. Henry.26 The husband and wife obtained a parcel of land by deed following their marriage in 1910.27 In 1919, the husband and wife died together in a burning building, making survivorship unascertainable.28 The wife's son from a prior marriage filed suit, arguing he was entitled to one-half of the land held by the couple as tenants by the entirety.29 The court began by noting that when the unity of husband and wife is broken by one spouse's death, the tenancy by the entirety ends.30 Therefore, upon the death of one spouse, the entire property becomes vested in the surviving spouse in fee simple absolute.31 Determining how the entireties property should be divided when both spouses die in the same tragedy, without proof of who survived the other was, however, an issue of first impression in Tennessee.32

The McGhee court reasoned that a tenancy by the entirety becomes a tenancy in common when a couple divorces.33 Therefore, by analogy, property held in a tenancy by the entirety should be distributed as if the spouses were tenants in common when death occurs simultaneously.34 The result is that a one-half interest passes through the estate of each spouse.35 The court, in reaching this conclusion, upheld the common law rule regarding the simultaneous deaths of tenants by the entirety, and stated that "if two or more persons perish in the same disaster and there is no fact or circumstance to prove which survived, there is no presumption whatever on the subject."36 Therefore, equal division of the property held in a tenancy by the entirety occurs when the parties die simultaneously in a common disaster.37