Legal Guide to Joint Tenants with Right of Survivorship

Joint tenants with rights of survivorship, or JTWROS, is a description of asset ownership. The term describes one way that two people may own an asset together. Joint tenancy with the right of survivorship applies to all types of assets, including real property, financial accounts, and tangible personal property.

JTWROS ownership comprises separate concepts of “joint ownership” and “survivorship.

Under Florida law, there must be at least two co-owners of joint tenants with right of survivorship property. There may be more than two owners, but there must be at least two owners who jointly share title.

Four Unities for Joint Tenants with Right of Survivorship

In Florida, owning property as joint tenants with the right of survivorship requires a unity of possession, interest, time, and title.

Each tenant must have an equal right to occupy the entire property (unity of possession), hold an equal share in the property (unity of interest), acquire their interest at the same time (unity of time), and receive their interest through the same deed or title instrument (unity of title).

Requirement of Survivorship

There are several ways that multiple people may share ownership.

For example, multiple persons may form a partnership. Individuals may each own a separate interest in property as “tenants in common”. Tenants in common owners each own their separate, divided interest in a property.

An example of tenants in common ownership is when two people are listed on a deed without any further designation other than each’s name on title. Generally, when two owners are listed on the title without further description, the owners are presumed tenants in common. When one of the tenants in common owners dies, their separate share goes to their heirs as designated in their living trust or will.

Inherent in the description of joint tenants with rights of survivorship is the concept of survivorship. When any one of the JTWROS owners dies, their share passes to the surviving owners automatically by operation of law. The deceased owner’s heirs do not inherit the JTWROS share by testamentary will or trust. The deceased owner’s heirs get none of the property interest unless they too were one of the surviving owners.

When all but one of the JTWROS owners die, the last surviving owner has full unrestricted title to the property. The last surviving owner of joint tenants with survivorship property may give the entire property to whomever they chose in their will or living trust.

Can You Transfer Joint Ownership During Your Lifetime?

There is no difference between tenants in common and JTWROS in terms of the owner’s ability to sell or convey their ownership interest during their lifetime. A person who owns an asset as tenants in common or as JRWROS can transfer their interest to anyone while they are alive without the consent or joinder of the other owners.

Does Joint Tenant with Survivorship Ownership Provide Asset Protection?

Assets owned as joint tenants with survivorship do not provide asset protection. A creditor may levy upon your interest in any JTWROS property. A debtor can have the seized JTWROS interest auctioned, and the creditor or third party that acquires the interest becomes a joint tenant with the non-debtor co-owners.

Tenants by Entireties vs. Joint Tenants With Rights of Survivorship

Married couples may jointly own property as tenancy by the entireties. Tenancy by the entireties property is like JTWROS  property because both have the element of survivorship—the surviving spouse takes title to entireties property after the first spouse’s death.

The difference between JTWROS and TBE is that TBE property is exempt from the creditor of either spouse during the marriage. The property is no longer exempt after divorce or the death of the non-debtor spouse. TBE property is not protected from joint creditors.

Not all marital property qualifies as TBE property. There are complicated legal rules that determine whether a marital asset is owned as JTWROS or TBE.

Estate Planning Benefits of Joint Tenants With Rights of Survivorship

JTWROS is beneficial for estate planning because it helps avoid probate. When family members own assets as JTWROS, or as tenants by the entireties,  the deceased family member’s interest passes to the surviving joint owners by operation of law outside any probate proceeding. The value of the decedent’s JTWROS or TBE interest is considered part of their taxable estate for the purpose of an estate tax assessment.

Property owned jointly as tenants in common must be probated in order to pass to the decedent’s intended heirs because the decedent’s share does not transfer automatically by operation of law.