What Is a Right of Survivorship Deed? How It Works

A right of survivorship deed is a legal document that dictates who inherits a piece of real estate if one of the joint owners dies. The title and deed then immediately transfer into the name of the surviving owner.

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Right of survivorship deeds or agreements can be important tools in estate planning for married couples or long-term partners who own real estate or other property together.

The deed outlines the agreement between spouses and states that 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. This allows the surviving spouse to inherit the assets or property and avoid the hassle of the probate process, especially during a particularly difficult and emotional time ^[0]

Having a right of survivorship deed simplifies the transfer of ownership of property and assets after one owner dies. It transfers ownership automatically and avoids probate.

However, you still must abide by applicable estate laws. For example, you may still be subject to federal or state estate tax ^[0]

There are two ways to establish right of survivorship: through joint tenancy or tenancy by the entirety ^[0]

1. Joint tenancy. This means each co-owner has an undivided interest in the property. This isn’t permanent, and joint tenancy with right of survivorship can be canceled or changed if 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. In a tenancy by the entirety, 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. 

There are four requirements to establish right of survivorship, known as the four unities. They require ownership interests to be:

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 ^[0]

   Westlaw. Joint Tenancy with Right of Survivorship (JTWROS). Accessed Oct 13, 2023.

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The four unities necessary to establish the right of survivorship might vary slightly from state to state.

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Here are a few advantages and disadvantages.

Pros

• Avoids probate. The biggest advantage to setting up a right of survivorship is avoiding the lengthy probate process after death. It usually allows property to transfer immediately without third-party interference. 

• 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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Although the specifics of joint tenancy and right of survivorship vary by state, It’s fairly easy to set up a right of survivorship deed.

First, verify if you live in a community property state. In these states, most property that a married couple acquires during the marriage is automatically owned by both spouses ^[0]

• Arizona

• California.

• Idaho.

• Louisiana.

• Nevada.

• New Mexico.

• Texas.

• Washington.

• Wisconsin.

If, on the other hand, you live in a state where a formal right of survivorship agreement or deed is required, get the appropriate 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. Your county clerk or estate lawyer can help determine this.

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. A 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 or untimely death.

» MORE: How Social Security survivors benefits work

A will. A will allows you to designate who inherits your property and assets. It allows you to split 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.

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Transfer on death deed. In certain states, a transfer on death deed allows you to pass land or real estate property to an heir after your death without needing a will. Transfer on death deeds also avoid the probate process.

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