15-6-402. TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY. (1) In the case of real property owned by a husband and wife as community property with right of survivorship pursuant to section 15-6-401, Idaho Code, the right of survivorship is extinguished on the recordation in the office of the recorder of the county or counties where the real property is located an affidavit entitled "affidavit terminating right of survivorship" executed by either spouse under oath which sets forth:

(a) A stated intent by the spouse to terminate the survivorship right;

(b) A description in the instrument by which the right of survivorship was created, including the date the instrument was recorded and the county recorder’s book and page or instrument reference number; and

(c) The legal description of the real property affected by the affidavit.

The recordation shall not extinguish the community interest of either spouse.

(2) Divorce, or annulment of the marriage of, the husband and wife, unless otherwise ordered by the court in which the divorce is granted, severs the interests of the former spouses in property held by them at the time of the divorce or annulment as community property with the right of survivorship and transforms the interests of the former spouses into tenancies in common. A severance under this section does not affect any third party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that a person relied upon as evidence of ownership in the ordinary course of transactions involving that property.

History:

[15-6-402, added 2008, ch. 175, sec. 1, p. 478.]