Right of Survivorship

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Right of Survivorship

The power of the successor or successors of a deceased individual to acquire the property of that individual upon his or her death; a distinguishing feature of Joint Tenancy.

The right of survivorship determines what happens to a certain type of co-owned property after one of its owners dies. Under law there are many kinds of co-ownership, but the right of survivorship is found only in joint tenancy, a contract between two or more parties specifying their simultaneous ownership of some form of real or personal property such as a house, land, or money. In all joint tenancies, at the death of one of the joint tenants, ownership of the remaining property passes to the surviving tenants, or successors, who assert the right of survivorship. This is a powerful legal right because it takes precedence over other claims upon the property. Originally a right at Common Law, it is recognized by statute in all states.

In order for co-owners of property to realize the right of survivorship, the property must be owned in joint tenancy. Joint tenancy describes an ownership interest in property held by two or more people called tenants. The tenants acquire their ownership interest in the property in the same way and at the same time, and each holds an equal share. Joint tenancies are created by deed, will, or other transfer of property. Property that is held under a different form of coownership can be converted into a joint tenancy by amending the title to the property.

When one of the joint tenants dies, the right of survivorship takes effect, passing the deceased tenant's interest in the property to the other joint tenant or tenants. Husbands and wives often create joint tenancies for co-ownership of their real property; under the common law this form of joint tenancy is called a Tenancy by the Entirety. It is an attractive legal option because of the right of survivorship. Upon one spouse's death, the right of survivorship takes precedence over claims on the property by the deceased person's heirs, beneficiaries, and creditors. The right passes outside probate—the procedure by which a deceased person's will is approved—so legal professionals sometimes call joint tenancy a probate avoidance device. The dissolution of a marriage usually ends any subsequent claim of right of survivorship.

A joint tenancy continues as long as more than one joint tenant survives. Upon the death of one tenant, the shares of the other tenants increase equally; in a sense they absorb the ownership interest of the deceased person. This automatic process continues until only one surviving joint tenant is left; this survivor becomes the sole owner of the property.

Courts frequently hear claims based on the right of survivorship. The surviving joint tenant furnishes proof of the death of the other joint tenant as well as valid legal titles indicating that the relevant real property was held in a joint tenancy. Documentary evidence establishing the existence of a joint tenancy is generally required to overcome a challenge to the right of survivorship.

Further readings

Petrulis, Kenneth G. 2000. "New Title; California Adopts Community Property With Right of Survivorship." The Los Angeles Daily Journal 113 (November 14).

Ratner, James R. 1999. "Community Property, Right of Survivorship, and Separate Property Contributions to Marital Assets: an Interplay." Arizona Law Review 41 (winter).

References in periodicals archive ?
A's estate does not need to use any of his $5,250,000 estate tax applicable exclusion since all of the assets are jointly titled and the unlimited marital deduction allows A's share of the joint assets to be automatically transferred to B by right of survivorship without incurring any federal estate taxes.
With regard to property titled as tenants by the entirety or as joint tenants with right of survivorship, when at least one of the co-owners qualifies for the homestead tax exemption, he or she is permitted the entire exemption amount.
Joint ownership with right of survivorship may serve to avoid probate, but there are certain to be assets not jointly owned.
Married couples or those in a civil partnership commonly use this method of co-ownership because the right of survivorship makes it straightforward to inherit each other's shares in the property.
There may be negative tax consequences when an interest passes through right of survivorship.
It was questionable at common law whether a joint tenancy with right of survivorship or a tenancy by the entirety could be created by a conveyance from the owner to the owner and another.
TE is a form of property ownership available only to a husband and wife as a marital unit; a key feature is the right of survivorship (i.
Like so many things, community property with right of survivorship is another tool in the tool box that estate planning attorneys have at their disposal.
A WHERE you own property with another person who has died, in most cases the survivor of the two joint owners is entitled to the whole of the property by right of survivorship.
If property is held with another person in joint ownership with right of survivorship, the property will pass to the survivor by operation of law and not through the will; the jointly held asset never forms part of the first joint owner's estate.
His article dealt with a troubling area in estate planning - the treatment of property owned as joint tenancy with the right of survivorship (JTWROS) and tenancy by the entirety.
Property owned as joint tenants with right of survivorship is not treated the same and one tenant's interest in such property generally may be reached by his or her creditors, perhaps through partition of the debtor's interest.