How title to jointly-owned property is held can determine the disposition of an owner’s interest upon death. Some forms of ownership allow the deceased property owner to pass his interest to those persons or entities specified in a will or trust. Other forms of title automatically pass the deceased owner’s interest to the surviving property owners. Consult with an attorney in your state if you are unclear as how to proceed upon the death of a property owner, or if you are considering changing how you and the other owners of a property currently hold title.
Tenancy in Common
A tenancy in common is, perhaps, the most common form of joint ownership. Each property owner under this type of joint ownership is referred to as a tenant in common. Absent a clear statement in the way in which title is held, a tenancy in common is presumed in most states where there are co-owners of property. Each tenant in common has an undivided, fractional interest in the entire property. When a tenant in common dies, that tenant’s property interest passes to that tenant’s heirs or to those persons otherwise specified in a will or trust.
Co-owners of property held in joint tenancy are referred to as joint tenants. A joint tenancy may also be referred to as a joint tenancy with the right of survivorship. It is this right of survivorship that distinguishes a joint tenancy from a tenancy in common. When one joint tenant dies, that joint tenant’s interest in the property automatically passes to the surviving joint tenants. For example, if A, B, and C own a parcel of land together as joint tenants and B dies, A and C automatically take B’s interest. A and C would still be joint tenants. The right of survivorship exists whether the deceased joint tenant left her property interest to someone other than a joint tenant in a will or trust. For example, if B had a will leaving B’s interest in property to her daughter, and if the daughter was not a joint tenant, B’s daughter would not inherit B’s property interest. This is because in a joint tenancy, when a joint tenant dies, their interest instantly passes directly to the remaining joint tenants. As such, even if B tried to bequest its interest through its will, B's interest would not pass according to the will because B's interest terminated instantly upon death and passed instantly to A and C.
Tenancy by the Entirety
A rare form of joint ownership, and a form of ownership that has been abolished in most states, is the tenancy by the entirety. As with a joint tenancy, a tenancy by the entirety provides the right of survivorship, meaning that if one tenant dies, the surviving tenant automatically takes the deceased tenant’s ownership interest. Unlike joint tenancy, only married couples may hold title as tenants by the entirety. When one spouse dies, the other spouse automatically takes the deceased spouse’s property interest. The lone exception to the right of survivorship is where one spouse murders the other. The murdering spouse is prevented from inheriting the deceased spouse’s property interest. In that case, the property would pass to the deceased spouse’s heirs or through the deceased spouse’s will or trust.
In community property states, married persons and registered domestic partners may hold title as community property. Each spouse owns an undivided one-half interest in the property. Where title is held as community property, each co-owner may leave his property interest to someone other than his spouse at death. In this way, property held as community property is treated as though it were held by tenants in common. A closely related form of co-ownership is community property with the right of survivorship. As its name suggests, this form of ownership operates like a joint tenancy, meaning that if one spouse dies, the surviving spouse automatically inherits the deceased spouse’s property interest, regardless of whether the deceased spouse had a will or trust in which he left the property to someone other than the surviving spouse.