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).

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
In order to avoid this kind of drama, it may make sense to add the other partner as an owner to real estate and other acounts, perhaps as joint tenants with rights of survivorship. It may make better sense to create a living trust to hold real estate and other individual assets to allow for continued management after the main owner passes without risk of the survivor being removed or being forced out due to lack of ability to pay carrying charges on the property.
King "with terminally ill persons as joint tenants with rights of survivorship."
* Joint tenancy rights of survivorship override any TOD deed.
Also important, though, is the opportunity to achieve a legal status that guarantees certain benefits such as family integrity, advantages for tax filing and rights of survivorship to pensions and other property.
The assets includible in S1's gross estate consist of cash on deposit in bank accounts held jointly with S2 with rights of survivorship in the amount of $2 million.
Generally, a married couple will want to hold the title jointly, but even then, it can be held with rights of survivorship or as tenants in common.
In overruling the trial court, the district court of appeal said, "We see no point in requiring that property be conveyed twice when a single conveyance is just as effective and has the virtues of economy and efficiency." The appellate court held that an estate with rights of survivorship was validly created.
Joint Ownership With Rights Of Survivorship. When an account is established in joint ownership with rights of survivorship, upon the death of one owner the surviving joint owner immediately takes full ownership of the account without the need for probate of the deceased's will or to resort to state intestacy statues.
Although the simplicity of joint ownership is attractive, the following should be considered: (1) federal law includes the entire value in the first decedent's estate, unless the survivor can prove contributions; (2) the account is subject to the creditors of both partners; and (3) to pass the asset at death, the title must include the words "rights of survivorship."
Unfortunately, there is not a clear authority for Jack or anyone else who seeks statutory guidance for calculating the exact amount of a discount for a one-half interest in property held as joint tenants with rights of survivorship. On the other hand, a wide variety of court cases and tax court memoranda provide guidance for valuing tractional interests of property when they are held as tenants-in-common.
In general, property is owned outright, as tenants in common, as joint tenants with rights of survivorship, or as community property.