ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Ownership Options

What is the most common form of joint co-ownership?

For couples, whether or not married, the most common form of ownership in most states is joint tenancy with right of survivorship. In this form, each person owns an undivided interest in the real estate. At the death of one joint tenant, the interest of the decedent is automatically transferred to the surviving owner, who becomes the sole owner of the property. When property is held in joint tenancy with right of survivorship, the beneficiaries of a deceased joint tenant have no claim to the property, even if the deceased mistakenly tried to leave the property to them in a will. Most couples choose this form of ownership to avoid having their home involved in probate after the first spouse dies.

But couples who have children from previous marriages may want their home equity transferred to their children at death rather than to their spouses in which case this form of ownership is not suitable.

Tenancy by the entirety operates similarly but requires that the tenants be spouses. This form of ownership is not recognized by some states. Consult a lawyer to determine the form of ownership most advantageous to you.