What Is a Right of Survivorship Deed? Definition, How It Works

A right of survivorship deed is a legal document that allows one of the joint owners to immediately inherit a property if the other owner dies. The title and deed to immediately transfer into the name of the surviving owner without going through probate, the court-supervised process to distribute assets after someone’s death.

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Survivorship agreements can be an important estate planning tool for married couples or long-term couples who own real estate or other property together. In the event of one spouse’s death, all or a portion of the assets and property acquired during their marriage (also known as community property) automatically become the property of the surviving spouse ^[0]

Some states may require a separate document to outline rights of survivorship, while others allow co-owners to outline the rights in the property’s deed.

There are three ways to establish the right of survivorship:

1. Joint tenancy.

This means each co-owner has an undivided interest in the property, and if one passes away, their interest passes equally to the surviving owners. This isn’t permanent, and joint tenancy with right of survivorship can be canceled or changed if all owners agree, if one sells their share in the property or if all owners die at the same time.

2. Tenancy by the entirety.

This only applies to married couples, and means that each partner can’t do anything with the property, including mortgaging, selling or bequeathing it to a beneficiary, without the other’s consent.

The right of survivorship can be canceled if the couple gets a divorce, if they both agree or if a creditor collects a joint debt. Tenancy by the entirety is recognized in most, but not all states.

3. Community property (with right of survivorship).

If you live in a community property state, most property that a married couple acquires during the marriage is automatically owned by both spouses, and the right of survivorship is built in, even if the spouse isn’t formally listed on the property deed. Currently, there are nine community property states:

• Arizona

• California.

• Idaho.

• Louisiana.

• Nevada.

• New Mexico.

• Texas.

• Washington.

• Wisconsin.

Pros

Avoids probate. This type of deed allows property to transfer immediately without third-party interference or undergoing a court-supervised probate process ^[0]

Ensures equal financial responsibility. Both owners bear the financial responsibility for the property, taking the burden off one sole owner.

Cons

Overrides a will. A right of survivorship deed overrides property transfers outlined in a will. Accordingly, an owner might inadvertently pass their share of a property to someone who is not noted in their will.

Can cause disputes. Joint tenancy and right of survivorship deeds can cause confusion among surviving owners and the late owner’s heirs if ownership of a property goes to someone unexpected or different from what is outlined in the decedent's will.

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All rights of survivorship must follow four requirements, called the four unities. They may vary slightly among states, but are typically the following:

1. Held by all tenants/owners.

2. Equal among all tenants/owners. 

3. Documented the same way (like a deed or in a will). 

4. Held at the same time.

In non-community-property states, a formal right of survivorship agreement or deed is required to give a spouse survivorship rights. You’ll need to request the form from your county clerk or draft a document detailing the following about the property:

• Whether right of survivorship exists.

• Whether the property will become the property of the survivor.

• Whether the property will vest in and belong to the surviving spouse.

• Whether the property shall pass to the surviving spouse.

File the document, along with your deed, with the proper county and state office. You may want to hire an estate attorney to ensure your deed is legally sound.

Nerdy tip: Although a right of survivorship deed allows the property to avoid passing through probate, it may still be subject to federal or state estate tax ^[0]

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Depending on your wishes and goals in estate planning, other legal documents or tools might better suit your needs. Here are a few.

• Power of attorney authorizes someone else to make decisions or act on your behalf, including making your business and financial decisions, or buying and selling property for you. This can be a helpful tool if your goal is to give a partner, heir, child, or other beneficiary quick and easy access to (but not necessarily ownership of) accounts or property in case of emergency.

• A will allows you to designate who inherits your property and assets, including splitting property and assets between beneficiaries. Everything is divided and distributed to your specifications rather than transferring automatically to a spouse or joint tenant. However, wills must still go through the probate process.