Right of survivorship is an important legal right that allows property owners to keep property in the event of the co-owner’s death. For example, property held as joint tenancy, tenancy by the entirety, or community property with the right of survivorship automatically passes to the surviving property owner without going through the probate process. That said, there is a difference between joint tenancy and community property with right of survivorship.
Joint Tenancy: An Overview
In California, most married couples hold real property as joint tenants with right of survivorship. Joint tenancy is a type of co-ownership of real or personal property between two or more persons in which each person owns an undivided interest of the whole. Because joint tenancy creates a right of survivorship, upon death, a party’s share of property will pass to the remaining joint tenant. For instance, many married couples share real property as joint tenants. This way, upon the death of a spouse, the surviving spouse will own 100% share of the property. This process avoids probate altogether.
Community Property With Right of Survivorship: An Overview
Similar to joint tenancy with right of survivorship, community property with right of survivorship ensures a surviving spouse receives the deceased spouse’s property share. However, spouses may not pass their property interest to someone other than their spouse in a will. Unlike joint tenancy, community property with right of survivorship is restricted to married couples and registered domestic partners. That said, like joint tenancy, property automatically passes to the surviving spouse without having to go through probate.
Tenants in Common
Tenants in common is another way co-owners can take title to property. In fact, parties will automatically assume this title if they do not select another. As a tenant in common, each party owns a specified portion of property pursuant to their ownership interest. Finally, upon the death of a tenant in common, their share will pass according to the instructions in their will. Otherwise, if there is no will, the share will go through intestate succession.
At A People’s Choice, we can help prepare the legal documents needed to set up the form of property tenancy that suits your estate planning needs. Picking the right type of tenancy can protect your property from the probate process. Plus, it can ensure your spouse obtains your home upon your death. Contact us for more information about the different real estate titles available to married couples and registered domestic partners in California.