When two or more people own community property like a home, either as joint tenants or tenants in common, each individual owns a share (or interest) of the entire property. This means that specific areas of the property are not owned by one individual, but rather shared as a whole. While joint tenants with survivorship are similar to tenants in common in many ways, particularly the right of possession with respect to the property, there are some important differences with respect to what happens when a co-owner dies. This can be very relevant when one spouse dies and the surviving spouse now owns the real estate alone.
This article covers the basic differences between joint tenants and tenants in common, and how community property with right of survivorship is treated by each type of tenant classification. It is important to note that the community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, which can have varied laws on marital property, real property, and surviving joint tenant laws.
While none of the owners may claim to own a specific part of the property, tenants in common may have different ownership interests. For instance, Tenant A and Tenant B may each own 25% of the home, while Tenant C owns 50% of the property as a whole. Tenants in common also may be created at different times; so an individual may obtain an interest in the property years after the other individuals have entered into a tenancy in common ownership.
Joint tenants, on the other hand, must obtain equal shares of the property with the same deed at the same time. The terms of either a joint tenancy or tenancy in common are spelled out in the deed, title, or other legally binding property ownership documents. The default ownership characterization for married couples is joint tenancy in some states, and tenancy in common in others (see Top 10 Reasons for Unmarried Partners to Own Property as Joint Tenants).
A joint tenancy is broken if one of the tenants sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. However, a tenancy in common may end if one or more co-tenant buys out the others; if the property is sold and the proceeds distributed equally among the owners; or if a partition action is filed, which allows an heir inheriting the property to sell his or her stake.
One of the main differences between the two types of shared ownership is what happens to the property when one of the owners dies. When a property is owned by joint tenants with survivorship, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. For example, if four joint tenants own a house and one of them dies, each of the three remaining joint tenants ends up with a one-third share of the property. This is called the right of survivorship.
But tenants in common have no rights of survivorship. Unless the deceased individual's will specifies that his or her interest in the property is to be divided among the surviving owners, a deceased tenant in common's interest belongs to his or her estate.
Estate planning can be complicated, and making the right choices now will save you and your family problems down the road. Consider meeting with an estate planning lawyer to learn more about the differences between joint tenants and tenants in common with respect to survivorship. Get started today by contacting a local estate planning lawyer.