## Facts

- Martin and Roslyn Smolen married in 1970.
- In 1990, Martin was diagnosed with a brain tumor, and his health deteriorated.
- The couple divorced in 1994 to protect assets from anticipated medical costs.
- The divorce decree divided property and ordered that the Las Vegas residence at 3676 Pecos Road “shall remain in joint tenancy.”
- After the divorce, Martin and Roslyn continued living together for about nine months; Martin’s condition later included dementia and atypical Parkinson’s disease.
- In November 1994, Roslyn obtained temporary guardianship of Martin without his knowledge or consent and placed him in a group home against his wishes.
- After court proceedings, the district court revoked Roslyn’s temporary guardianship and found Martin competent to manage his person and estate (April 1995).
- In May 1995, Martin created a revocable trust naming his nephew, Jason Smolen, as sole beneficiary and successor trustee.
- Martin executed a deed transferring his interest in the Las Vegas residence to the trust.
- Martin suffered a stroke in July 1995 and died in October 1995.
- After Martin’s death, Roslyn sought to set aside the deed, asserting it violated the divorce decree and the intended survivorship arrangement.

## Issues

1. Whether a divorce decree stating the residence “shall remain in joint tenancy” eliminated a joint tenant’s power to unilaterally sever the joint tenancy by conveying an interest to a revocable trust.
2. Whether Martin’s deed to the trust was valid and, if valid, what property interests resulted upon Martin’s death.

## Decision

- The Nevada Supreme Court reversed the district court’s order voiding the deed.
- The Court held the divorce decree’s “remain in joint tenancy” language did not expressly restrict unilateral severance or contractually bind Martin to preserve survivorship.
- The Court held Martin’s conveyance of his joint-tenancy interest to his revocable trust was a valid unilateral severance under Nevada law.
- The conveyance converted the ownership from joint tenancy to tenancy in common between Roslyn and the trust.
- Upon Martin’s death, his one-half interest passed through the trust to Jason, leaving Jason and Roslyn as tenants in common.

## Legal Principles

- A joint tenant may unilaterally sever a joint tenancy by conveying that joint tenant’s undivided interest to a third party, including a revocable trust.
- Severance extinguishes the right of survivorship and results in a tenancy in common between the transferee and the remaining former joint tenant.
- A divorce decree stating property “shall remain in joint tenancy,” without explicit restrictions, is construed as preserving the form of title at the time of the decree, not as permanently prohibiting severance.
- Courts will not infer a waiver of the incidents of joint tenancy (including unilateral severance) from general decree language absent clear, express limitations.

## Conclusion

The court held that general decree language directing property to “remain in joint tenancy” did not bar Martin from deeding his interest to his revocable trust; the deed validly severed the joint tenancy, created a tenancy in common, and caused Martin’s share to pass under the trust rather than by survivorship.


Smolen v. Smolen, 956 P.2d 128 (Nev. 1998)