The Right of Survivorship is a legal doctrine that permits a surviving co-owner (joint tenant) to automatically inherit the share of a deceased co-owner in a property held under Joint Tenancy or Tenancy by the Entirety. This mechanism bypasses probate and directly transfers the property interest to the surviving tenants.
Key Features
Automatic Transfer
Upon the death of one joint tenant, the deceased’s interest is directly transferred to the surviving tenants, maintaining the integrity of the joint ownership.
Probate Bypass
The transfer is immediate and does not require the cumbersome probate process, which can often be time-consuming and costly.
Equitable Distribution
Each joint tenant holds an equal share of the property, and upon death, the property is distributed equally among the surviving tenants.
Types of Property Ownership with Right of Survivorship
Joint Tenancy
Under Joint Tenancy, each tenant owns an equal part of the whole property, and the Right of Survivorship ensures that the last surviving tenant owns the entire property.
Key Characteristics:
- Unity of Time: Interest is acquired at the same time.
- Unity of Title: Interest is acquired from the same deed.
- Unity of Interest: Equal interest in the property.
- Unity of Possession: Equal rights to possess and use the entire property.
Tenancy by the Entirety
This form of ownership is available only to married couples, offering additional protections beyond Joint Tenancy, such as protection against some individual creditors.
Key Characteristics:
- Unity of Person: Recognizes the married couple as a single legal entity.
- Default Survivorship: Upon the death of one spouse, the other automatically inherits the entire property.
Historical Context
The Right of Survivorship has roots in common law traditions, designed to ensure seamless transitions in property ownership and provide stability and predictability in inheritance matters. Historically, it has been favored for its ability to prevent disputes and provide clear lines of ownership.
Applicability
The Right of Survivorship is prevalent in several aspects of law and life:
- Estate Planning: Used to simplify the transfer of assets.
- Family Law: Common between spouses for marital property.
- Real Estate: Common for purchases involving multiple family members or investment partners.
Special Considerations
While the Right of Survivorship offers many benefits, it also has limitations:
Severance of Joint Tenancy
A joint tenant can sever the joint tenancy by selling or transferring their interest, converting the ownership into a tenancy in common, which does not include Survivorship rights.
Legal and Tax Implications
The automatic transfer bypasses probate but may have tax implications, particularly capital gains tax or estate tax considerations.
Comparison with Related Terms
Joint Tenancy vs. Tenancy in Common
- Joint Tenancy: Includes Right of Survivorship.
- Tenancy in Common: No Right of Survivorship; interest of deceased goes to heirs, per will or state law.
Joint Tenancy vs. Community Property
- Community Property: Exists in certain states; doesn’t automatically include survivorship rights unless specified (e.g., Community Property with Right of Survivorship).
FAQs
Can the Right of Survivorship be removed?
Do all joint tenants have to agree to sell the property?
How does the Right of Survivorship affect inheritance?
References
- Black’s Law Dictionary
- U.S. Legal Code on Property
- Common Law Principles
Summary
The Right of Survivorship is a crucial element in property law, facilitating the automatic transfer of property interests upon death. Predominantly seen in Joint Tenancy and Tenancy by the Entirety, it offers significant advantages in estate planning and real estate transactions, providing clarity and simplicity in inheritance issues while also introducing certain legal and tax considerations.
