How Vermont Courts Interpret Deeds for Joint Tenancy with Right of Survivorship

Kirshon v. Abodeely-Mills

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A recent Vermont Supreme Court decision, Kirshon v. Abodeely-Mills, shows just how strict Vermont courts are when deciding whether a deed created a joint tenancy with right of survivorship or a tenancy in common.

Under Vermont law, a deed transferring property to more than one person is presumed to create a tenancy in common. A tenancy in common means each owner holds a separate share, and when that owner dies, their share passes to their own heirs. A joint tenancy with right of survivorship works differently. When one owner dies, their share goes to the other surviving owners instead, not to their heirs. In order for a joint tenancy with right of survivorship to be created, it must be “expressed in clear and definite terms.”

Kirshon involved a lakeside property in Orwell that was deeded in 1958 to a mother and her three sons. The deed attempted to create a joint tenancy with right of survivorship. Its habendum clause conveyed the property to the four of them “as joint tenants with right of survivorship their heirs and assigns forever.” Decades later, after three of the four original owners had died, their descendants ended up in a dispute over how the property should be divided. The trial court sided with the last surviving owner’s descendants, reasoning that the survivorship language was enough on its own to create a joint tenancy with right of survivorship. The Vermont Supreme Court disagreed and reversed.

Part of the problem was that only the deed’s habendum clause said anything about right of survivorship. The granting clause in the deed did not mention joint tenancy or survivorship at all. The Court reads deeds “as a whole, giving effect to every part so as to understand the words in the context of the full deed,” rather than reading “simply a single clause of the instrument.”

And the habendum clause had its own issue. It said the grantees took the property “as joint tenants with right of survivorship,” but then added “their heirs and assigns forever,” a phrase inconsistent with survivorship language. The Court has faced this same contradiction once before, in Kipp v. Chips Estate (1999), where the deed called the grantees “joint tenants, and their heirs and assigns forever.” The trial court argued Kirshon was different because this deed went further, adding “with right of survivorship.” The Supreme Court disagreed, explaining that the inconsistency in Kipp came from pairing survivorship language with “heirs and assigns forever” language, not from the specific word “tenants.” Adding “with right of survivorship” in Kirshon did not resolve the issue, since the deed still had “their heirs and assigns forever,” the same language that doomed the deed in Kipp.

Because the deed’s language created enough doubt, the Court found it fell short of the clear and definite standard needed to create a joint tenancy. The case was sent back to the trial court with instructions to enter judgment reflecting a tenancy in common, meaning each of the four original owners’ shares passed through their own estates and to their heirs.

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