Right of Survivorship

Also found in: Financial, Acronyms.

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 ?
(21) Joint tenancy, with a right of survivorship, appeared as the first form of concurrent ownership.
"[T]he amount of the exemption may not exceed the proportionate assessed valuation of all owners who reside on the property" when the property is not held as tenants by the entirety or as joint tenants with right of survivorship. (8) Therefore, if at least one co-owner of the property titled as tenants in common qualifies for the homestead tax exemption, he or she "may ...
For example, Dad leaves a vacation home to his three children, Tom, Ann, and Rita, as joint tenants with right of survivorship. Ann dies first.
Property owned jointly with right of survivorship passes to the survivor or survivors by operation of law when a joint tenant dies.
create a right of survivorship. (48) Tenancies by the entirety, the
As to Hansen's contention that the co-op discriminated against her in refusing to transfer her mother's interest in membership in the co-op and denying her occupancy of her mother's unit, Justice Slade said the co-op's refusal was, indeed, based on her family status as outlined in the B.C.'s Human Rights Code, but the co-op met the Code's requirement for a reasonable and bona fide justification with its rules governing the unfettered right of survivorship for a deceased member's spouse and by its minimum occupancy rule.
In a joint tenancy, upon the death of a beneficiary, their share is disbursed proportionately among the surviving beneficiaries ("right of survivorship").
The right of survivorship means the property becomes solely yours.
Titling assets under joint tenancy with right of survivorship (JTWROS) does avoid probate--but not estate taxes.
Each tenant has a right of survivorship. Under Michigan law a tenant by the entirety has the right to use the property, to exclude others from using it, to share in any income from the property, to receive half the proceeds on sale and to borrow against the property with the other tenant's consent.
The first is "joint tenants with right of survivorship", where the property will pass to the remaining partner by operation of law.
Taxation of Jointly Owned Property includes information on the tax treatment of joint property ownership when there is a right of survivorship. It addresses issues facing both married and unmarried co-tenants and details the specific rules governing a non-U.S.