Right of Survivorship

• Author: Jeffrey Lehman, Shirelle Phelps

Page 357

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 of JOINT 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...