Right of Survivorship

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What Is the Right of Survivorship?

The Right of Survivorship generally refers to the right of joint tenants to claim the entire property upon the death of another joint tenant.  For example, if A, B and C have joint possession of real property, C’s share will be equally distributed to A and B if C should become deceased. 

The right of survivorship is a very powerful legal right, as it can override other legal considerations such as inheritance claims.  Originally, the right of survivorship was only recognized under certain common law doctrines; however, the right is currently recognized under statute in all U.S. states.

What Forms of Title Have the Right of Survivorship?

The right of survivorship is not available for all forms of real estate title.  It is only available under certain forms involving joint possession of real estate, namely: 1) Joint Tenancy and 2) Tenancy by the Entirety (joint possession by a married couple).  The right of survivorship is not available for tenancies in common.

In addition, most states require that the right of survivorship be specifically claimed by the joint owners.  If the parties do not claim the right of survivorship, the state will usually assume that the joint possession is in the form of a tenancy in common. 

How do I Claim the Right of Survivorship?

The right of survivorship must be claimed in order to be effective.  This can usually be accomplished by including a specific clause in the real estate title itself. Or, the description of the title may include language indicating that the right of survivorship is being claimed.  For example, the title may state, “Joint Tenancy with Right of Survivorship”, or “Tenancy by the Entirety with Right of Survivorship”.

If the right of survivorship is not claimed, then the parties cannot lay claim to the share of a joint tenant who has become deceased.   The deceased tenant’s share might then be distributed according to other laws, such as probate laws or according to directions contained in the person’s will. 

Can the Right of Survivorship be Terminated or Extinguished?

Yes- the right of survivorship can be terminated or extinguished at any time.  This can be done in a few different ways.

First, the joint tenants can revoke their rights of survivorship through an express agreement or written contract.  They would then forfeit their survivorship rights, and the joint ownership would likely be re-classified as a tenancy in common.

Next, if a joint tenant transfers or sells their individual property interest, the rest of the joint tenants will lose the right to survivorship.  This is because the tenants must all maintain joint possession of the property at all times in order to qualify for joint tenancy.  If a joint tenancy sells their share to another party, the remaining tenants may need to create a new joint tenancy agreement with the party who replaced the former tenant. 

Finally, the right of survivorship may be extinguished according to the instructions of a judge or court order.  This may occur for example if the property agreement was found to be invalid.

Do I Need a Lawyer for Issues with the Right of Survivorship?

The right of survivorship is a legal doctrine that can be very helpful in many situations.  However, claiming the right of survivorship may often require the assistance of a lawyer.  An experienced real estate lawyer can help draft a survivorship clause to ensure that the joint owners claim their legal rights.  Also, an attorney can provide representation in the even of a lawsuit. 

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Last Modified: 11-13-2013 10:58 AM PST

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