What is the right of survivorship?
The right of survivorship is a right granted to joint property owners that ensures the transfer of one owner’s stake to the remaining property owner(s) in the case of his or her death.
The best way for owners to gain this right is by specifying that they want to be joint tenants with right of survivorship (JTWROS) either when initially registering a land title or when transferring a land title with a Survivorship Deed.
What are the benefits of the right of survivorship?
Depending on your circumstances, the right of survivorship can benefit you and your joint tenant(s) because it ensures that:
- Surviving tenants automatically acquire property: When you and your joint tenant(s) own a property with rights of survivorship and one of you passes away, the property can skip the probate process because the surviving tenant(s) automatically acquire the deceased’s portion.
- Tenants can’t transfer their interest in the joint tenancy: When you and your joint tenant(s) each own an equal interest in a property, you can’t transfer your interest to someone else and leave the joint tenancy intact. As a joint tenant, if you sell your interest, the joint tenancy ends and the property is owned as a tenancy in common.
What does the right of survivorship apply to?
Generally, the right of survivorship only applies to residential or commercial property held in joint tenancy with a right of survivorship. A joint tenant may benefit from holding the right of survivorship on a property, such as a:
- Single-family house
- Piece of land
How does the right of survivorship work?
You and your joint tenant, such as your spouse, can each establish the right of survivorship when initially purchasing a piece of property by including the correct terms in your land title. In most states, you can ensure the right of survivorship for all joint tenants by including JTWROS on the title after your names.
However, if you already own a property and want to transfer partial ownership to another party, you can use a Survivorship Deed to establish the right of survivorship.
Does the right of survivorship override a Last Will?
Yes. Generally, the right of survivorship will take precedence over a Last Will and Testament if the jointly-owned property is distributed wrongfully in someone’s estate plans. Therefore, you shouldn’t list any property in your Will that you and another person(s) jointly own with the right of survivorship.
Once there is one surviving owner with sole ownership of the property, that owner has the right to distribute or pass on the property through a Last Will. At this point, they are no longer a joint tenant and can distribute the property as they desire through their Will.
The laws surrounding the right of survivorship may depend on your state. Check with your local laws to confirm how the right of survivorship impacts your Last Will and property.
What is the difference between joint tenants with the right of survivorship and tenants in common?
Joint tenants with the right of survivorship are two or more people who own an equal interest in a property. When one person dies their interest passes automatically to the surviving joint tenant(s).
In contrast, tenants in common can own unequal shares in a property and have no right of survivorship. If one owner dies, their interest in the property is distributed according to their Last Will and doesn’t automatically transfer to the other owners of the property. Tenants in common can transfer their interest in the property to an heir after their passing.
Who grants the right of survivorship?
The grantor is the person (or persons) who transfers a property title and grants the right of survivorship. If you already own a property and want to transfer equal ownership and the right of survivorship to another person, such as a spouse, you are both a grantor and a grantee. In this instance, your spouse is only a grantee.
Conversely, if you purchase real estate or property with someone and become joint tenants with the right of survivorship at the beginning of your tenancy, you have effectively given each other this right.