RIGHT OF SURVIVORSHIP

The power of the successor or successors of a deceased individual to acquire the property of that individual upon his or her death; a distinguishing feature ofjoint tenancy.

The right of survivorship determines what happens to a certain type of co-owned property after one of its owners dies. Under law there are many kinds of co-ownership, but the right of survivorship is found only in joint tenancy, a contract between two or more parties specifying their simultaneous ownership of some form of real or personal property such as a house, land, or money. In all joint tenancies, at the death of one of the joint tenants, ownership of the remaining property passes to the surviving tenants, or successors, who assert the right of survivorship. This is a powerful legal right because it takes precedence over other claims upon the property. Originally a right at common law, it is recognized by statute in all states.

In order for co-owners of property to realize the right of survivorship, the property must be owned in joint tenancy. Joint tenancy describes an ownership interest in property held by two or more people called tenants. The tenants acquire their ownership interest in the property in the same way and at the same time, and each holds an equal share. Joint tenancies are created by deed, will, or other transfer of property. Property that is held under a different form of coownership can be converted into a joint tenancy by amending the title to the property.

When one of the joint tenants dies, the right of survivorship takes effect, passing the deceased tenant's interest in the property to the other joint tenant or tenants. Husbands and wives often create joint tenancies for co-ownership of their real property; under the common law this form of joint tenancy is called a tenancy by the entirety. It is an attractive legal option because of the right of survivorship. Upon one spouse's death, the right of survivorship takes precedence over claims on the property by the deceased person's heirs, beneficiaries, and creditors. The right passes outside probate—the procedure by which a deceased person's will is approved—so legal professionals sometimes call joint tenancy a probate avoidance device. The dissolution of a marriage usually ends any subsequent claim of right of survivorship.

A joint tenancy continues as long as more than one joint tenant survives. Upon the death of one tenant, the shares of the other tenants increase equally; in a sense they absorb the ownership interest of the deceased person. This automatic process continues until only one surviving joint tenant is left; this survivor becomes the sole owner of the property.

Courts frequently hear claims based on the right of survivorship. The surviving joint tenant furnishes proof of the death of the other joint tenant as well as valid legal titles indicating that the relevant real property was held in a joint tenancy. Documentary evidence establishing the existence of a joint tenancy is generally required to overcome a challenge to the right of survivorship.

further readings

Petrulis, Kenneth G. 2000. "New Title; California Adopts Community Property With Right of Survivorship." The Los Angeles Daily Journal 113 (November 14).

Ratner, James R. 1999. "Community Property, Right of Survivorship, and Separate Property Contributions to Marital Assets: an Interplay." Arizona Law Review 41 (winter).