Comments to the proposed regulations unanimously suggested that the "unilaterally severable" requirement be removed, noting that when parties purchase property, they often do not make an informed decision regarding whether to hold the property as JTWROS or TBE.
44] Under the final regulations, the survivorship interest in JTWROS and TBE property can be disclaimed within nine months of the date of death of the first joint tenant to die, regardless of whether such survivorship interest is unilaterally severable.
Previously, this ruling was only applicable to JTWROS property which was unilaterally severable, but with the advent of the final regulations, the ruling may now be equally applicable to TBE property, but for the argument that TBE property is not unilaterally severable for state law purposes.
Although the JTWROS and TBE forms of ownership are very similar in their unities and characteristics, the differences between them carry significant consequences.
10) In contrast to the JTWROS form of ownership, the husband and wife, under the TBE form of ownership, are said to hold the property "per tout et non per my," or by the whole and not by the moiety.
14) In contrast to those holding under a JTWROS, the surviving spouse does not take by right of survivorship, but rather continues to hold the whole estate after the death of the other spouse by virtue of the unity of person element of the TBE form of ownership.
Finally, while a JTWROS may be terminated by the unilateral act of a joint tenant, a TBE may be terminated only when:
This difficulty arises from the fact that such accounts, when constituting a TBE, closely resemble any other type of joint account, including joint accounts created for convenience and JTWROS accounts and, because of the relative ease with which funds may be withdrawn from the account by either spouse, the account balances are constantly fluctuating.
a single person who may be a surviving joint tenant and is contemplating taking, or has already taken, title to property as JTWROS with children, grandchildren or other family members.
This article focuses on the issues that must be addressed by the practitioner when a husband and wife own property as JTWROS with a third party: for example, a child, grandchild, nephew, niece, brother, sister or parent, other family members or unrelated individuals.
When the practitioner is confronted in the preparation of the United States Estate Tax Return (Form 706) by a three-way JTWROS ownership of property involving a decedent spouse, two issues must be addressed: (1) the extent to which the JTWROS property is includable in the decedent spouse's gross estate; and (2) the amount of such property, if any, which is eligible for the Federal estate tax marital deduction in the decedent spouse's gross estate.
citizen spouses dying after 1981, the consideration-furnished test does not apply in determining the amount of JTWROS property includable in the decedent spouse's gross estate.