Tenancy in Common vs. Joint Tenancy With Right of Survivorship

By Rebecca Lake · October 16, 2023 · 10 minute read

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Tenancy in Common vs. Joint Tenancy With Right of Survivorship

Tenancy in common and joint tenancy with right of survivorship describe two different models of ownership for people who share a property. The main difference between tenancy in common vs. joint tenancy is how property is treated when one of the owners passes away. Joint tenants are entitled to inherit the other person’s share of the home, while tenants in common are not.

That’s an important distinction to understand if you’re considering buying a home or another piece of real estate with someone else. Whether it makes sense to hold property as joint tenancy vs. tenancy in common can depend on your situation and overall financial plan.

What Are Joint Tenants With Right of Survivorship?

What is joint tenancy? In simple terms, it’s a means of owning property or assets equally with someone else. For example, if you own a home as a joint tenant with right of survivorship, both you and the other tenant have an undivided interest in the property. You both have an equal right to live in and use the home and when one of you passes away, the other tenant will automatically inherit the property.

In order for a joint tenancy to exist, these four things must be true:

•   Each owner’s interest is equal.

•   Each owner acquired their interest in the property at the same time.

•   Owners agree to have the right of survivorship.

•   The property title must specify a joint tenancy vesting.

Joint tenancy arrangements can only exist between individuals. That means that a trust cannot be listed as a joint tenant on a property with an individual. It’s important to note that states can place additional restrictions on when a joint tenancy arrangement exists, what rights each tenant has, and when ownership is terminated, so check the rules for your state before making a decision.

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Examples of Joint Tenants With Right of Survivorship

There are different scenarios in which you might own property with someone else. For instance, you might have a joint tenant with right of survivorship situation if:

•   You get married and jointly purchase a home with your spouse. Your mortgage document specifies that you’re both listed as joint tenants of the property once the sale is complete.

•   Your aging parent decides to add you as a joint tenant to their bank account or sets up a joint brokerage account so that you can inherit those assets once they pass away, without having to go through the probate process.

•   You purchase an investment property with your sibling, agreeing to share in the ownership of the property and any profits gleaned from renting it out. You also split the costs of owning and maintaining it.

The common thread here is what happens to the property or assets being shared when one of you passes away. In that case, the other joint tenant is entitled to inherit it automatically.

Pros and Cons of Joint Tenants With Right of Survivorship

Joint tenancy with right of survivorship can hold some advantages for co-owners of a property or other asset. If you’re a first-time homebuyer, for instance, then making a purchase with someone else as joint tenants could make it more affordable. Home mortgage loans can be easier to qualify for when there are two borrowers in the mix.

Once the purchase is complete, you’d both own the home equally and share responsibility for the mortgage payments, taxes, maintenance, and upkeep. That’s a plus if you live in a more expensive area. (When comparing the cost of living by state, for instance, it’s easy to see that some locations come with a higher price tag.)

Being a joint tenant can also simplify things should one tenant pass away. Rather than having to go through probate, which can be lengthy and time-consuming, the surviving owner in a joint tenancy can inherit the property right away.

As far as the downsides go, there are some limitations. For one thing, joint tenants cannot share their ownership share of the property without the consent of the other tenant. Think about the previous example of buying a rental property with a sibling: Let’s say you decide you’d like to sell, but your sibling doesn’t want to sell her half, and nor does she want to buy you out. That’s where it gets messy.

Joint tenancy arrangements can also cause issues if you’d like to leave your share of the home to someone besides the other tenant, such as your children. Legally, you wouldn’t be able to do that; you’d need to have a tenancy in common arrangement instead. And if you’d like to get a home equity line of credit based on your equity in the property, your lender might require the other tenant’s consent to do so.

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What Are Tenants in Common?

What does tenants in common mean? Tenancy in common is an ownership arrangement in which two or more people share a property or asset. Ownership can be split equally between all tenants but it doesn’t have to be.

All co-tenants have the right to use the property. Two important differences between this and joint tenancy with right of survivorship: A tenant in common could sell their share without the other tenants’ consent. And when a tenant in common passes away, their share of the property would go to their heirs and if they have no heirs, to their estate.

Examples of Tenants in Common

There are different reasons for choosing to hold property as tenants in common vs joint tenancy ownership. Here are some examples of how it might work if you share a property with one or more individuals.

•   You purchase an investment property with two of your siblings. Your oldest sibling put down half of the down payment, so you agree that they should get a 50% share of the property while you and your other sibling get 25% each.

•   You’ve purchased a home with your significant other as tenants in common, but the relationship goes south. You both agreed to split the home 50/50 and you decide to sell your share to your former partner’s cousin who wants to move in.

•   You get remarried and buy a home with your new spouse, agreeing that you’ll get 60% ownership while your spouse gets 40%. Both of you have adult children from a previous relationship. You choose a tenants in common arrangement so that when you pass away, your children — not your spouse — will inherit your 60% ownership share in the property.

How you decide to share ownership in a tenancy in common situation is up to you. It may be easiest to make the split equal but if one person has more money invested in the property than another, it might be more fair to give them a larger share.

Pros and Cons of Tenants in Common

Some of the pros and cons of tenancy in common are similar to those associated with joint tenancy. For instance, buying a home can be more affordable when you own it with someone else or multiple people. There are no limits to the number of people you can include in a tenancy in common arrangement.

Tenancy in common also allows you some flexibility since you can sell your share at any time. You can also leave your property to your heirs, rather than having it automatically go to your co-owners.

In terms of drawbacks, owning a property as tenants in common can be tricky if one tenant passes away and you don’t get along with the person who inherits it. For example, if your ex-partner’s child inherits their share and they don’t want to own the home, they might try to force its sale. That’s a worst-case scenario, but it’s something to consider if you’re buying a home with a non-spouse.

Tenants in common also share responsibility for taxes and other financial obligations associated with the property. If you buy a home with another person or multiple people and one of them isn’t pulling their weight, you may be forced to pick up the slack.

What’s the Difference Between Joint Tenants With Right of Survivorship and Tenants in Common?

The difference between joint tenancy vs. tenants in common centers largely on who owns what and what happens to their ownership share when they die. In a joint tenancy situation, both owners share the property equally. Each one is entitled to inherit the property from the other should one of them pass away.

Tenants in common don’t have that same right. Instead, their share of the property goes to their heirs or estate when they pass away. That means that tenancy in common doesn’t avoid probate the way that a joint tenancy would. Additionally, tenancy in common does not guarantee equal ownership of the property.

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How to Transfer Property Held in Joint Tenancy After One Joint Tenant Has Died

When property is held in a joint tenancy arrangement, one tenant automatically inherits the other tenant’s share when they pass away. There’s no need to transfer the deed or title to the property if both tenants were already listed on it. You wouldn’t need to go through probate either.

You may be required to file a copy of the deceased tenant’s death certificate along with an affidavit certifying your joint tenancy status with your register of deeds or county clerk’s office. An estate planning attorney can help you to determine what documentation, if any, might be necessary to affirm your ownership in the property.

What if you want to transfer property you inherited as a joint tenant? In that case, you’d most likely need to deed the property over to the new owner. For example, you could get a warranty deed to transfer a property you inherited from your husband to your oldest child if you’d like them to own it. Keep in mind that if you’re giving the property to them, that could potentially trigger gift tax.

Tips on How to Plan Your Estate

Estate planning allows you to have some control over what happens to your assets. Some of the things to consider when creating an estate plan include:

•   Whom you would like to inherit your assets when you pass away

•   How minor children will be provided for and taken care of, if you’re a parent

•   What will happen to property you own with someone else, either as joint tenants or tenants in common

•   How any debts you leave behind will be handled

There are different financial tools that you can use to create an estate plan, starting with a last will and testament. A will allows you to outline your specific wishes for whom you’d like to inherit your assets. You can also use a will to name a guardian for minor children.

If you have a more complicated estate, you might consider establishing a trust as well. A trust allows a trustee of your choosing to manage your assets on behalf of your beneficiaries, according to the terms and conditions you set. For instance, you might establish a trust to set aside money for the care of a child with special needs or to ensure that your adult children don’t blow through their inheritance.

Life insurance is another piece of the puzzle. A life insurance policy can provide a death benefit to your loved ones should something happen to you. They could use that money to pay final expenses, pay off debts, or simply cover day to day living expenses if needed. Talking to a financial advisor or estate planning attorney can help you decide what elements to include in your plan.

The Takeaway

Understanding the difference between joint tenancy vs. tenancy in common matters if you’re planning to buy a home with someone else. There are different rights and responsibilities associated with each type of ownership, and you’ll want to determine the best option for you before you get to the closing table.

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What is a primary difference between joint tenancy and tenancy in common?

In a joint tenancy situation, both owners have an equal right to the property. When one joint tenant passes away, the other automatically inherits their ownership share. In a tenancy in common arrangement, the heirs of a joint owner would be entitled to inherit their share of the property when they die.

How does a tenancy in common differ from a joint tenancy with right of survivorship?

In a tenancy in common arrangement, when one owner passes away, their heirs receive their share of the property. In a joint tenancy with right of survivorship agreement, each joint owner stands to inherit the other owner’s share of the property should one of them pass away.

What is the advantage of being tenants in common?

Tenants in common can sell their ownership share of the property, without requiring the other owner’s permission, and new owners can be added to the arrangement. When making their estate plan, tenants in common also have the flexibility to leave their share of the property to whomever they wish.

Photo credit: iStock/fotodelux

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