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Frequently Asked Questions (FAQs)

Joint tenancy, Community Property, Domestic Partnerships

What is joint tenancy? What is community property? What is community property with right of survivorship?

Joint Tenancy is a form of co-ownership in which two or more persons own property in equal undivided interests as their separate property.

• Title to the property must describe the owners "as joint tenants", or describe the transfer to them as a transfer "in joint tenancy".

• One very important characteristic of joint tenancy property is that the interest of a joint tenant who dies vests immediately in the surviving joint tenant(s), regardless of the deceased joint tenant's will. No probate administration of the deceased joint tenant's interest is needed.

Most property owned by a couple is community property.

• Community property includes all of their real property situated in California, and all of their personal property wherever situated, acquired during marriage, other than property acquired by gift, bequest, devise or descent.

• Property acquired by a husband and wife jointly during marriage is presumed to be community property for the purpose of dividing the property upon dissolution of marriage or legal separation.

• A couple can hold title in their names “as community property.” Even if they hold title as joint tenants, more than likely the property is community property.

• In short, the form of the instrument under which a couple holds title -- i.e. as joint tenants -- does not conclusively determine the character (community or separate) of their ownership.

California recently added a third way for a married couple to hold title: community property with right of survivorship. This allows the double step-up in the income tax basis in the property when one spouse dies (see answer to next question) while also automatically vesting full title in the name of the surviving spouse.