Holding Title
| TENANCY IN COMMON |
JOINT TENANCY | COMMUNITY PROPERTY |
COMMUNITY PROPERTY WITH RIGHTS OF SURVIVORSHIP |
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| Parties | Two or more persons’ (may be spouses or domestic partners`). |
Two or more persons’ (may be spouses or domestic partners’). |
Husband and wife or domestic partners. |
Husband and wife or domestic partners. |
| Division | Ownership can be divided into any number of interests, equal or unequal. |
Ownership interests must be equal. |
Ownership interests must be equal. |
Ownership interests must be equal. |
| Creation | One or more conveyances (Law presumes interests are equal if not otherwise specified). |
Single conveyance (creating identical interests). Vesting must specify joint tenancy. |
Single conveyance or presumption from marriage or domestic partnership. |
Single conveyance and spouses or domestic partners must indicate consent which can be on deed. |
| Possession and Control |
Equal. | Equal. | Equal. | Equal. |
| Transferability | Each co-owner may transfer or mortgage their interest separately.’ |
Each co-owner may transfer his/her interest separately but tenancy in common results; |
Both spouses or domestic partners must consent to transfer or mortgage. |
Both spouses or domestic partners must consent to transfer or mortgage. |
| Liens Against One Owner | Unless married or domestic partners, co-owner’s interest not subject to liens of other debtor/ owner but forced sale can occur.’ | Co-owner’s interest not subject to liens of other debtor/owner but forced sale can occur if prior to co-owner’s/debtor’s debt | Entire property subject to forced sale to satisfy debt of either spouse or domestic partner. | Entire property subject to forced sale to satisfy debt of either spouse or domestic partner. |
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| Death of Co-Owner | Decedent’s interest passes to his/her heirs by will or intestacy. | Decedent’s interest automatically passes to surviving joint tenant (Right of Survivorship). | Deceased’s 1/2 interest passes to surviving spouse or domestic partner unless otherwise devised by will. | Deceased’s 1/2 interest auto- matically passes to surviving spouse or domestic partner due to Right of Survivorship. |
| Possible Advantages/ Disadvantages | Co-owner interests may be separately transferable. | Right of Survivorship (avoids probate). May have tax disadvantages for spouses | Qualified survivorship rights. Mutual consent required for transfer. Surviving spouse or domestic partner’ may have tax advantage. | Right of Survivorship. Mutual consent required for transfer. Surviving spouse or domestic partner may have tax advantage. |
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