What is the Right of Survivorship and How Does It Work

The right of survivorship refers to a legal attribute that has been vastly used throughout the years. It is a topic that might interest you if you are buying a property together with one or more other people. Today we are going to see a definition of the right of survivorship, as well as an explanation on how does it work.

Right of Survivorship Definition

The right of survivorship refers to an attribute of various types of joint ownership of property. One of the most common ones is the joint tenancy and the tenancy in common. If the property that is bought includes this right, the owner that survives will receive the dying owner’s share of the property. As such, if X and Y own a house together with a right of survivorship, and Y dies, X will be the only owner of the house. This happens even if Y mentioned something else in their will.

The joint tenancy is an ownership interest in property that is split between several tenants. They become joint owners of the property at the same time, in the same way, each of them having an equal share. This type of tenancy can be created by will, deed, or other types of property transfer. Moreover, it continues if there are more than one tenants alive. If one of the tenants dies, this will lead to an equal increase in the shares of the rest of the owners. This is similar to the joint ventures conditions.

A tenancy in common (TIC) doesn’t usually hold a right of survivorship, but there have been cases where people arranged this. For example, if X and Y hold in common a property and X dies, X’s share won’t go to Y, but it will respect what is written in X’s will. What makes this different is the fact that the shares of the property may be unequal in size. Moreover, they can be transferred to other owners as well, both while the owner is alive and after they succumb. Even though the shares can be unequal in size, all the owners have the right to occupy and use the entire property.

Survivorship Deed – What Is It and How to Transfer Property with It?

A deed is a document outlining the transfer of a share of a property that was jointly held by the deceased owner to the surviving one(s). It’s an agreement that is meant to preserve the ownership within a certain group of entities or individuals. Most often, they are used by surviving spouses who owned individual real estate with their romantic partners. However, it can also be used by groups of joint tenants that want to have an equitable distribution of the ownership interests of the deceased.

The first step is to determine the parties who join the tenancy. Next, you need to draft the deed. It needs to be a warranty deed or a quitclaim one. In this case, you should consider what is best suitable for your situation. In general, warranty deeds include more things and offer more guarantees, though they can take a longer time. Once this is done, the joint tenants need to file it to the local courthouse as soon as they can.

right of survivorship survivorship agreement

Model of survivorship agreement. Image courtesy of Megadox

Estate Taxes

The right of survivorship arrangements are subjected to estate taxes. If the property we are talking about is big enough to support estate taxes, then the owners who survived will be liable. As such, they will have to pay proportional shares of the bill. This means that surviving spouses need to pay estate taxes as well. It’s important to keep in mind that the survivorship arrangements offer increased ownership shares in the real property.

This translates to the fact that the financial benefits will outweigh the requirements of the estate tax. There is also an estate tax exclusion limit which is set at $5 million. Currently, it covers only a small part of the American properties.

Community vs. Separate Property

In general, the right of survivorship applies only to community property. This is extremely important for the arrangements made between spouses. People who bring separate real property holdings into the marriage don’t need to transfer the assets automatically to the surviving partner. Some states, such as California and Colorado, have a broader definition of the community property. Even so, the spouses that have separate property holdings have significant freedoms in all the states.

You need to pay attention if you find yourself in one of the situations we described above. In general, the right of survivorship applies to the jointly held properties by default. As such, the spouses need to change this arrangement, depending on their case.

Alternatives

Despite its obvious benefits, there are many people who avoid using survivorship deeds. For example, people who want to bypass the spouses and leave the property directly to their descendants need to eschew these deeds. Similarly, business partners who want to enrich their heirs must pay attention to the common arrangements. One solution is to add a non-survivorship stipulation to the joint tenancy contracts. Keep in mind that you need to take positive action if you want to avoid survivorship transfers under the state laws.

Useful or Not?

Even though the right of survivorship is quite a common thing, it doesn’t come in handy everywhere. For example, for people who want to divide the property equally in case the principal owner dies, they don’t need the right of survivorship. The tenants in common are forbidden by the law to enjoy survivorship. If you are one of the current or prospective owners who are not sure about the advantages and disadvantages of the right of survivorship should consult a professional.

Here you have an example about the right of survivorship:

To draw a conclusion, the right of survivorship is an attribute of a variety of joint tenancies. Basically, it states that a surviving owner will become the sole owner of a property they held together with a deceased tenant. Though it is often used in marriages, it may not be suitable for all the real-life situations. As such, it’s a good idea to check with a specialist if this would be useful for your case or not.

Image source: depositphotos.com

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