## Facts

- Robert Stanley Mitchell and Shirley C. Mitchell married in 1978 and acquired four parcels of real property titled to them as joint tenants.
- Shirley filed a marital dissolution action; an automatic temporary restraining order under Family Code § 2040(a) and a similarly worded court injunction prohibited either spouse from transferring, encumbering, or otherwise disposing of property.
- While those orders were in effect, Robert recorded declarations of severance under Civil Code § 683.2(a)(2), purporting to sever the joint tenancies.
- Robert died shortly after recording the severances and before the dissolution action concluded.
- Charles Jeffrey Mitchell (Robert’s son), acting as special administrator, claimed the severance converted the properties to tenancies in common so Robert’s interests passed to the estate.
- Shirley petitioned in probate for the properties, asserting the severance violated the restraining orders and was void, so she took by survivorship.
- The probate court granted Shirley’s petition; Charles appealed.

## Issues

1. Whether recording a unilateral declaration of severance under Civil Code § 683.2(a)(2) is a prohibited “transfer” or “disposition” of property under the dissolution ATRO and similarly worded injunction.
2. If not prohibited, whether the severance was effective so the decedent’s property interests passed to the estate rather than to the surviving joint tenant by right of survivorship.

## Decision

- The Court of Appeal reversed the probate court’s order awarding the properties to Shirley by survivorship.
- The court held that a severance by recorded declaration is not a “transfer” or prohibited “disposition” of property within the meaning of the dissolution restraining orders.
- The court held the severance was effective; Robert’s interests therefore did not pass to Shirley by survivorship and instead became part of his estate.
- The matter was remanded for further proceedings consistent with these holdings.

## Legal Principles

- A “transfer” generally requires movement of a right, title, or interest in property from one person to another; severing a joint tenancy by recorded declaration changes the form of co-ownership without moving an interest to another person.
- Terms in dissolution restraining orders such as “transferring” and “disposing of” property are read in context to target alienation, concealment, or encumbrance that shifts rights or burdens in favor of others, not a unilateral change eliminating survivorship.
- A unilateral severance under Civil Code § 683.2(a)(2) destroys the survivorship feature and converts a joint tenancy into a tenancy in common, leaving each party with the same fractional ownership interest absent a further conveyance.
- Because severance does not remove the asset from the family court’s power to divide marital property, it is not barred by Family Code § 2040(a) ATRO language prohibiting transfers or dispositions.

## Conclusion

A spouse’s unilateral severance of joint tenancy by recording a declaration during a pending dissolution does not violate standard dissolution restraining orders against transferring or disposing of property; the severance is effective, eliminating survivorship and causing the decedent’s share to pass through the estate.


Estate of Mitchell, 76 Cal. App. 4th 1378, 91 Cal. Rptr. 2d 192 (Cal. Ct. App. 1999)