• joint tenancy and community property with right of survivorship

Difference Between Joint Tenancy and Community Property With Right of Survivorship

Joint Tenancy and Community Property With Right of Survivorship Explained

The right of survivorship is an important legal right that allows property owners to keep property in the event of the co-owners death. 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. There is a difference between joint tenancy and community property with right of survivorship. Below is a detailed overview of the benefits of holding property with the right of survivorship as joint tenants or community property. Read on to learn more.

Joint Tenancy 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 example, when a married couple shares real property as joint tenants, both spouses share equal ownership interest in the property. Upon the death of a spouse, his/her interest will automatically pass to the surviving spouse. The surviving spouse will be left with 100% share of the property. Because the surviving spouse automatically receives the property, probate can be avoided (at least until the surviving owner passes away).

Community Property with Right of Survivorship 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. Community property tenancy allows couples to own an undivided interest in the entire property. Spouses are not allowed to pass their property interest to someone other than their spouse in a will. This type of tenancy is restricted to married couples and registered domestic partners. Property will automatically pass to the surviving spouse without having to go through the probate process.

Difference between Joint Tenancy and Community Property with Right of Survivorship in California

When property is held as joint tenants in community property states, each spouse is prohibited from willing away his/her property interest. The spouse’s share of property is automatically given to the surviving spouse.

When it comes to paying taxes, talk to a tax consultant about the various tax implications as it pertains to property owned as joint tenants vs. real property held as community property with right of survivorship. There may be capital gains implications that you should be aware of.

Tenants in Common

Tenants in common is another way co-owners can take title to property. This default title will be implied between parties if no other title is specified. As a tenant in common, each party will own a specified portion of property pursuant to their ownership interest. Upon the death of a tenant in common, his/her share will pass according to the instructions of his/her will, or through intestate succession (if there was no will).

Married couples should consider the form of title of their jointly owned property. The forms of ownership mentioned above are some of the many and should be considered in the context of a couple’s estate planning desires. At A People’s Choice, we can help prepare the legal documents you need 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 and make sure 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.

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By |2018-10-02T17:03:52-07:00June 8th, 2015|Real Property|18 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

18 Comments

  1. Aletha March 8, 2019 at 9:32 pm

    My parents purchased 4 plots at Forest Lawn Cemetery in CA about 1960. Mom died in 1975. Dad remarried in 1976. He included his wife’s name on the deed. Dad died in 1980. His second wife died in 2008, was cremated and ashes scattered at sea. She has no children. Her parents have passed. She had 2 siblings that have died. Forest Lawn wants to know if her siblings had children. The family was in Michigan. I have no personal information of her family. All information I have came from online research. How can I obtain possession of the 2 remaining plots in Forest Lawn? Does it need to go into probate? There were no Wills.

    • Sandy McCarthy March 17, 2019 at 2:23 pm

      It is hard to say. It would seem that the heirship would go down the line of the new wife’s family. Talk to an attorney on this.

  2. Orlando Lopez March 6, 2019 at 3:26 pm

    Hello, Sandy. I bought a house in California in 1995. I paid for all expenses (downpayment, closing, etc..) however, my grandma helped me finance the house with a bank. She passed away about 4 yrs ago. I never looked into the grand deed, until recently. It reads…both of our names with a prase “unmarried person”. It does not say anything about right of survivorship. Can i be the executor? Would i have to pay taxes? My uncle n aunties r ok with not contesting this estate. Any other advice. Thanks.

    • Sandy McCarthy March 8, 2019 at 6:25 am

      It sounds like you may have to probate your grandmother’s estate. We can help with this process at a much lower cost than attorneys charge! Call us at 800-747-2780.

  3. Mw February 25, 2019 at 11:21 pm

    We have a quick claim deed that list my mother-in-law, my wife and myself has community property with right of Survivor ship and I am not sure after reading your article if that’s possible in the state of California and if it is what are the ramifications.

    • Sandy McCarthy February 26, 2019 at 6:47 am

      This does not sound like correct title as community property interest typically pertains to married people and obviously you are not married to your mother-in-law. You may want to have this looked at.

  4. Li Tang December 18, 2018 at 12:18 pm

    My daughter, her husband, and I own a house (may worth $400k)as joint tenant in California. I live in this house for more than 10 years. However, my daughter has her own house and does not live with me. I understand that I do not need to pay tax as capital gain when I sell the house. Is it necessary for my daughter to pay tax on capital gain since this house is not her residence. If yes, how to determine the percentage she and he should share?

    • Sandy McCarthy December 19, 2018 at 1:14 am

      Talk to a CPA regarding thus tax issue.

  5. Tony December 5, 2018 at 12:03 am

    My Brother passed away and he has a vehicle that I would love to hold I would love to hold onto because it’s the last thing that I have left my brother to hold on to memories in that truck and I really want to have it, just wondering how do I go about this just transfer title but does the truck have to be involved in any type of probate it’s a newer F1 50 so if you could please give me any advice I appreciate it thank you

    • Sandy McCarthy December 6, 2018 at 7:57 am

      Hi Tony – we could certainly help you with this required documentation. Just give our office a call at 800-747-2780

  6. robert gagne November 13, 2018 at 3:30 pm

    as a married couple over 8 years does all the assets are combined as one. example my name is on the property not my wifes name should this mean in california we both own the property

    • Sandy McCarthy November 13, 2018 at 8:21 pm

      It’s hard to say but an attorney should be able to give you more specific legal advice on this issue.

  7. Max Becker October 22, 2018 at 7:28 pm

    Your explanation of Joint Tenancy and Community Property with Right of Survivorship is excellent, but it leaves open the question of whether they actually mean the same in California and if that word “SURVIVORSHIP” has to be spelled out -or- if simply the statement “husband nad Wife, joint tenants suffices.Would you please kindly respond to me as I am in Hawaii and have no access to a competent sourse to answer this question. Thank you.

    • Sandy McCarthy October 27, 2018 at 2:05 pm

      This is a legal question that would have legal ramifications. There is specific required wording for various types of title holding. If you are unclear, I would speak to an attorney.

  8. Eleni July 21, 2018 at 1:30 am

    As a married couple in CA is it better to hold title as community property with right of survivorship or as joint tenancy when it comes to tax purposes? We are currently in escrow and want to make the right choice!

    • Sandy McCarthy July 21, 2018 at 8:51 am

      Unfortunately, since we are not attorneys we cannot give you legal advice. Check with your CPA or a lawyer.

  9. Annmarie Baker April 25, 2018 at 1:09 pm

    My husband died September 23,2015. A surplusfund for the sell of our home is available to me. But the company who took and auctioned the home wants me to file probate. All other assets were left to me, without contest. Why do I have to, and why does this company insist that I do.

    • Sandy McCarthy April 25, 2018 at 4:40 pm

      You did not indicate the amount of surplus from the sale that is due you. This would make a difference of what type of proceeding you might be able to use to settle your husband‘s estate. Please feel free to give our office a call at 800-747-2780.

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