COMMUNITY PROPERTY
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JOINT TENANCY WITH RIGHT OF SURVIVORSHIP
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COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP
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TENANCY IN COMMON
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| Requires a valid marriage between two persons. |
Parties need not be married; may be more than two joint tenants. |
Requires a valid marriage between two persons. |
Parties need not be married; may be more than two tenants in common. |
| Each spouse holds an undivided one-half interest in the estate. |
Each joint tenant holds an equal and undivided interest in the estate. |
Each spouse holds an undivided one-half interest in the estate. |
Each tenant in common holds an undivided and fractional interest in the estate. Can be disproportionate, i.e., 20% and 80%; 60% and 40%; 20%, 20%, 20%, and 40%; etc. |
| One spouse cannot partition the property by selling his or her interest. |
One joint tenant can partition the property by selling his or her joint interest. |
One spouse cannot partition the property by selling his or her interest. |
Each tenant's share can be conveyed, encumbered or devised to a third party. |
| Requires signatures of both spouses to convey or encumber. |
Requires signatures of all joint tenants to convey or encumber the whole. |
Requires signatures of both spouses to convey or encumber. |
Requires signatures of all tenants to convey or encumber the whole. |
| Each spouse can devise (will) one-half of the community property. |
Estate passes to the surviving joint tenants outside of probate. |
Estate passes to the surviving spouse outside of probate. |
Upon death the tenant's proportionate share passes to his or her heirs by will or intestacy. |
| Upon death the estate of the decedent must be "cleared" through probate, affidavit, or adjudication. |
No court action required to "clear" title upon the death of joint tenant(s). |
No court action required to "clear" title upon the first death. |
Upon death the estate of the decedent must be "cleared" through probate, affidavit, or adjudication. |
| Both halves of the community property are entitled to a "stepped up" tax basis as of the date of death. |
Deceased tenant's share is entitled to a "stepped up" tax basis as of the date of death. |
Both halves of the community property are entitled to a "stepped up" tax. |
Each share has its own tax basis. |
