Does Survivorship Override the Will?

By Laura Payet

Does Survivorship Override the Will?

By Laura Payet

When two parties own property subject to a right of survivorship and one party passes away, outright ownership of that property automatically transfers to the survivor. Survivorship rights take precedence over any contrary terms in a person's will because property subject to rights of survivorship is not legally part of their estate at death and so cannot be distributed through a will.


Joint Tenants vs. Tenants in Common

The law recognizes two principal types of property ownership by multiple parties: joint tenancy and tenancy in common. Joint tenants possess simultaneous equal shares in the property, subject to survivorship rights. When one joint tenant passes away, the survivor (or survivors where more than two owners are involved) automatically owns the property outright. Creating a joint tenancy typically requires a written contract specifying the parties' status as joint tenants with right of survivorship. When the property in question consists of bank or investment accounts, survivorship language may be included in the account documents.

Tenancy in common is the default state of joint ownership that exists absent a joint tenancy. Tenants in common share simultaneous ownership of the property but without survivorship rights. While joint tenants own equal shares of the property, tenants in common may have different ownership interests. For instance, Jane may own 60 percent while Juan holds only 40 percent. When a tenant in common passes away, their ownership interest continues and can be distributed via their will as part of the estate. During their lifetime, a tenant in common is free to sell or gift their share without affecting the other owners' rights.

On the other hand, when a joint tenant sells their share of the property, that sale extinguishes the joint tenancy and its accompanying survivorship rights unless the remaining joint tenant reaches a written agreement with the new owner. After a joint tenancy ends, the original joint tenant and the new owner hold the property as tenants in common and each can sell their share or pass it via a will.

Passing Inside and Outside the Estate

A will can legally dispose of all property in a person's estate following their passing. The estate consists of everything the person owned at the time they died that does not already pass to a beneficiary in another way or isn't otherwise exempt under probate law. For example, if someone owned life insurance, the proceeds from that insurance pass to the beneficiary named in the policy regardless of any contrary will provisions because the policy is not part of the estate. Or if a person held property as trustee of a living trust, that property too is excluded from the estate and passes to the beneficiary named in the trust despite potentially contradicting terms in their will.

Similarly, property owned subject to a right of survivorship is passed on outside the estate. Ownership automatically vests in the survivor at death, and the other original owner no longer has an ownership interest. Therefore, the deceased has nothing to pass on through their will. The exception to this rule is if the deceased was the last surviving owner of the property once subject to survivorship rights. Any survivorship rights that once applied were extinguished when the deceased became the final survivor, and the property is therefore included in their estate.

Knowing what property you can and can't dispose of in your will is a critical aspect of estate planning. An online service provider can help you take a clear-eyed look at your potential estate and prepare your will so you can be sure it accomplishes what you intend.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.