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Do Joint Tenants Have to Be Married?

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By Ephrat Livni, Esq. on November 09, 2015 5:59 AM

Joint tenancy is a property law term that describes a type of home ownership. Joint tenants do not have to be married, and joint tenancies are not necessarily limited to two people.

There are perceived advantages to joint tenancies as forms of ownership. But beware, there are also certain risks.

Joint Tenancy

When two or more people own a home as a joint tenancy, each person owns an equal interest in the whole of the property. The terms of the tenancy are laid out in the deed or title and all joint tenants must obtain their share of the property at the same time.

Right of Survivorship

A joint tenancy with right of survivorship ensures that the property passes to the surviving tenants when one tenant dies. This excludes a joint tenancy from passage through a will or trust. Rather than inheriting a property through estate law -- say, via probate or will -- the joint tenant inherits by operation of law, or automatically.

But joint tenancy with right of survivorship does not rule out the possibility of probate at some point. If a married couple jointly owns a property with right of survivorship and one spouse dies, the property passes by law to the survivor. But after that, the surviving spouse owns the property and it is an asset like any other in an estate.

If, however, there are more than two joint tenants, the first death will pass the whole property to the next two tenants. When the second tenant dies, the third survivor inherits all.

Beware Tax Risks

The survivorship rights in joint tenancies are perceived as an advantage because they are not subject to inheritance tax. But there are still taxes due on a tenancy given as a gift.

This is particularly important for parents who buy property as a tenancy with their kids to ensure its passage to the children. The value of the property will likely be over $10,000 and therefore subject to gift taxes. Ultimately, it may be wiser for heirs to receive through in heritance because there are certain tax breaks available in that context.

The Long and Short of It

To determine if a joint tenancy is right for you and yours, talk to an estate lawyer. Talking to an expert now can help you ensure that there are no unintended consequences when you buy a property.

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