What Is a Joint Tenancy With Right of Survivorship?

In this article (Skip to...)

• What is joint tenancy with right of survivorship?
• How does it work?
• Pros and cons
• How to establish joint tenancy with right of survivorship
• Joint tenants with right of survivorship vs tenants in common
• FAQ

What is joint tenancy with right of survivorship?

Let’s break down the phrase. In this context, a joint tenancy occurs when two or more people share ownership of a home.

And a right of survivorship means that, when a joint tenant dies, the surviving person automatically gains full ownership rights. Better yet, that occurs without the costs and delays associated with probate.

You can see why, especially for married couples and civil partners, such a joint tenancy is a popular form of estate planning.

How does joint tenancy with right of survivorship work?

It’s incredibly easy to set up one of these. We’ll cover the mechanics further down the page.

Once in place, nothing happens until one of the joint tenants dies. Commonly, this is the spouse of the survivor. But it can be anyone. And you’re not limited to just two people.

So, if a couple has a child to whom they want to ultimately leave the home, they could make him or her a joint tenant. When the first parent dies, ownership of the home passes 50-50 to the spouse and child. When the second spouse dies, the child gets sole ownership of the property.

All this happens automatically with no need to hang around waiting for probate to be granted. And there are zero or near-zero costs. On a death, you just need to file a few documents to register the change of ownership.

If you’re unsure what probate is, the American Bar Association explains: “Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.”

You can typically use a joint tenancy with right of survivorship across a range of assets. So, you might wish to apply it to your cars, bank accounts, stock holdings, and other assets.

Please note that a joint tenancy with right of survivorship always alots ownership interests in equal shares to the joint tenants (except in Colorado, Connecticut, Ohio, or Vermont). Other forms of ownership allow tenants to own different proportions of the home’s value.

Those state exceptions remind us that these tenancies are mostly governed by state law. And, naturally, that varies. So, research the law that applies where your home is or consult an attorney. We can discuss only general principles here.

Joint tenancy with right of survivorship pros and cons

Pros

Here are the main upsides:

• You may be protected from the deceased person’s creditors. They can come after that person’s estate for outstanding debts. But they can only claim against the home or other joint asset if the survivor co-signed or guaranteed the loans
• It’s free and easy to set up a joint tenancy with right of survivorship
• When the time comes to transfer the home’s ownership, you need to file only the death certificate and sometimes a few other documents. Again, this is easy and often free
• You can have two or more joint tenants
• If you don’t have one of these joint tenancies, a court might freeze the deceased owner’s assets while it decides on ownership of the home

Cons

And the major downsides are:

• In most states, these tenancies provide equal shares of the home’s value. And the tenant who provided more of the funds for the home’s purchase may balk at that
• The last surviving joint tenant will need a different way to avoid probate court when he or she dies
• If a sole homeowner wishes to create a joint tenancy with right of survivorship, that will involve making a gift, which could have tax implications for the new tenant
• You need to have a lot of trust in your joint tenant. That person has an equal ownership and say over what’s probably your biggest asset
• On the death of a joint tenant, the other takes full ownership of the entire property. He or she is then free to bequeath it to anyone, not necessarily the heirs to whom you’d like your interest to ultimately go

These pros and cons are important. So, be sure to weigh them carefully before committing.

How to establish joint tenancy with right of survivorship

We said setting up one of these is easy. And it really is.

Legal website NOLO.com says, “To create a joint tenancy with the right of survivorship, all you need to do is put the right words on the title document, such as a deed to real estate, a car’s title slip, or the signature card establishing a bank account.”

Often, you don’t even have to write anything. The company that administers the closing on your home may send you a list of title options. And you just have to tick the right box.

Joints tenants with right of survivorship vs tenants in common

We mentioned earlier that a joint tenancy with the right of survivorship is only one way to own a home. According to FindLaw.com, others include:

Fee simple

You own the home outright and can bequeath it to anyone. But your heirs will have to wait for probate.

Tenancy in common

The tenants have an equal right to possession. However, they may have different financial ownership interests in the home. So, one might own 60% while two others have 20% each. And each can leave his or her share to whomever he or she wishes. If the heir isn’t a surviving tenant and the surviving tenant can’t afford to buy the deceased’s share, the home may have to be sold.

In many states, if you fail to specify a joint tenancy with right of survivorship, the law may assume you wanted a tenancy in common.

Tenancy in the entirety

This is only open to married couples in certain states. On the death of one spouse, ownership of the home automatically passes to the surviving one.

FindLaw explains the main difference between this and a joint tenancy with right of survivorship: "... the right of survivorship cannot be destroyed since severance by a surviving spouse is not possible.”

Community property

In states with community property laws, all assets (including homes) acquired during a marriage belong to both spouses equally.

In August 2023, FindLaw provided the following list of states with community property laws. You should check that your state hasn’t added itself to the list since:

• Arizona
• California
• Idaho
• Louisiana
• Nevada
• New Mexico
• Texas
• Washington
• Wisconsin

The bottom line

In this context, a tenancy is a way of structuring your homeownership rights to benefit a co-owner (or co-owners) on the death of another co-owner. A joint tenancy with right of survivorship allows the surviving tenant to automatically inherit the home without the expenses and wait that come with probate.

Often, this is clearly the best way to own a home. But, in some circumstances, you may have better ownership models, such as a tenancy in common or a tenancy in the entirety. So, explore your options before making your decision.

All homeowner tenancies are governed by state law. And not all options are available everywhere. So, it might be wise to obtain legal advice from an attorney or other professional to best guide you in your state and personal circumstances.

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