Right of Survivorship
Right of survivorship is a legal feature of joint tenancy and tenancy by the entirety that automatically transfers a deceased co-owner's interest to the surviving co-owner(s), bypassing probate.
Exam Tip
Right of survivorship = automatic transfer to surviving co-owner. Joint tenancy and tenancy by entirety HAVE it. Tenancy in common does NOT. Bypasses probate and CANNOT be overridden by will.
What is Right of Survivorship?
Right of survivorship is a key characteristic of certain forms of co-ownership that provides for automatic transfer of a deceased owner's interest to the surviving owner(s). When one co-owner dies, their share immediately passes to the surviving co-owner(s) without going through probate.
How Right of Survivorship Works
| Event | What Happens |
|---|---|
| Co-owner Dies | Deceased's interest automatically transfers |
| Surviving Owner(s) | Receive deceased's share |
| Probate | NOT required for property transfer |
| Will | Cannot override right of survivorship |
Forms of Ownership with Right of Survivorship
| Ownership Type | Survivorship | Who Can Use |
|---|---|---|
| Joint Tenancy | Yes | Any co-owners |
| Tenancy by the Entirety | Yes | Married couples only |
| Tenancy in Common | NO | Any co-owners |
| Community Property with Survivorship | Yes | Married couples (some states) |
Joint Tenancy Requirements (Four Unities)
| Unity | Requirement |
|---|---|
| Time | Acquired at same time |
| Title | Same deed or document |
| Interest | Equal shares |
| Possession | Equal right to whole property |
Survivorship Example
| Scenario | Three Joint Tenants A, B, C (each 1/3) |
|---|---|
| A Dies | B and C each own 1/2 |
| B Then Dies | C owns 100% |
Advantages of Right of Survivorship
| Benefit | Explanation |
|---|---|
| Avoids Probate | Property transfers immediately |
| Simplicity | No court involvement needed |
| Speed | Surviving owner has immediate access |
| Privacy | Not part of public probate records |
| Creditor Protection | May protect from deceased's creditors |
Disadvantages of Right of Survivorship
| Drawback | Explanation |
|---|---|
| Cannot Devise | Cannot leave share in will |
| Loss of Control | Property goes to co-owner, not heirs |
| Creditor Issues | Living co-owner's creditors may attach |
| Gift Tax | Creating joint tenancy may trigger gift tax |
| Severance Risk | Joint tenant can sever, destroy survivorship |
Severing Joint Tenancy
A joint tenant can destroy the right of survivorship by:
| Action | Result |
|---|---|
| Selling Their Interest | Creates tenancy in common |
| Mortgaging (some states) | May sever joint tenancy |
| Partition Action | Court-ordered division |
| Written Agreement | Mutual severance |
Tenancy by the Entirety vs. Joint Tenancy
| Feature | Tenancy by Entirety | Joint Tenancy |
|---|---|---|
| Parties | Married couples only | Anyone |
| Unilateral Severance | Not allowed | Allowed |
| Creditor Protection | Generally protected | Not protected |
| Divorce Effect | Converts to tenancy in common | N/A |
Exam Alert
Right of survivorship means deceased owner's share AUTOMATICALLY transfers to surviving co-owner(s). Joint tenancy and tenancy by the entirety have this right. Tenancy in common does NOT. Property with survivorship bypasses PROBATE and cannot be devised by will.
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Related Terms
Joint Tenancy
Real EstateJoint tenancy is a form of property co-ownership where two or more people hold equal, undivided interests with the right of survivorship, meaning when one owner dies, their share automatically passes to the surviving owner(s).
Tenancy in Common
Real EstateTenancy in common is a form of property co-ownership where two or more people hold undivided interests in the same property, with each owner able to sell or transfer their share independently and leave it to heirs.