What Is Survivorship In Joint Property?

Survivorship in joint property refers to the right that remains with the surviving joint owner(s) when one of the owners passes away. It is a common feature in joint ownership of property, where two or more individuals share ownership of a property. The concept ensures that, upon the death of one of the joint owners, their share of the property automatically transfers to the surviving owners, rather than being inherited by their legal heirs.

Key Aspects of Survivorship in Joint Property:

Types of Joint Ownership:

Joint Tenancy with Right of Survivorship: In this arrangement, all co-owners (joint tenants) have an equal share in the property. The most important feature of this type of ownership is the right of survivorship—when one joint tenant dies, their share automatically passes to the remaining surviving joint tenants.

Tenancy in Common: In contrast to joint tenancy, tenancy in common does not have the right of survivorship. Each owner has a defined share of the property, and upon their death, their share is transferred to their heirs, not the remaining joint tenants.

Right of Survivorship:

The right of survivorship means that when one joint owner dies, the surviving joint owners automatically inherit the deceased’s share of the property. For example, if two people own property as joint tenants, and one passes away, the surviving co-owner inherits the deceased's share, making them the sole owner of the property.

This right ensures that the property does not pass through the probate process or to the deceased’s heirs, thereby simplifying the transfer of ownership.

Legal Implications:

The right of survivorship overrides a will, meaning that if a joint tenant has a will that leaves their share of the property to someone else, it will not apply if the property is held in joint tenancy. The surviving joint tenant(s) will still inherit the deceased’s share, regardless of what is stated in the will.

However, it is important to note that the survivorship right only applies if the property is held as joint tenancy. In other forms of joint ownership (such as tenancy in common), the share will go to the deceased person’s heirs, not the surviving joint owners.

Examples of Joint Ownership:

Joint Tenancy: A married couple may own a home as joint tenants with the right of survivorship. If one spouse dies, the surviving spouse automatically inherits the deceased's share of the home.

Tenancy in Common: In this case, two business partners may own a commercial property. If one partner dies, their share of the property goes to their heirs, not to the surviving partner.

Legal Formalities:

To establish joint tenancy with right of survivorship, the property title must specifically state this arrangement. If the ownership agreement is not clear, courts may interpret the property as being held as tenancy in common.

Survivorship rights are usually established through a written agreement or title deed. It’s essential for co-owners to clarify their intention to have survivorship rights in place.

Impact on Estate Planning:

Estate planning should account for the joint property and its survivorship feature. If a person wishes to pass on property to someone outside the joint ownership, they should ensure their will reflects the property’s distribution, keeping in mind the survivorship rules.

Survivorship can help avoid lengthy probate processes, as the property passes directly to the surviving joint owners. However, it may create complications if a joint tenant wishes to transfer their share to someone other than a co-owner.

Tax Implications:

The transfer of property through the right of survivorship can have tax implications, particularly in terms of capital gains tax or inheritance taxes. In some jurisdictions, the transfer of property to a surviving joint owner may trigger taxes or affect the tax basis of the property.

It is advisable to consult a tax professional to understand the potential tax consequences in such cases.

Legal Actions and Protections:

Will and Probate Issues:

If there is any confusion regarding the distribution of property or if someone tries to challenge the right of survivorship, legal action may be required to resolve the dispute. A probate court may be needed if the survivorship rights are not clear or disputed.

Disputes Between Joint Owners:

In cases where joint tenants wish to dissolve the joint tenancy and divide the property, they can file for a partition in court. The court will divide the property according to the ownership structure.

Example:

John and Maria own a house as joint tenants with the right of survivorship. If John passes away, Maria automatically inherits John’s share of the house, becoming the sole owner. John’s will, which may have mentioned a different beneficiary for his share of the house, will have no effect in this case because of the right of survivorship.