Yours, Mine and Ours: How Spouses Share and Transfer Property

For most married couples, the cornerstone of estate planning is the transfer of their biggest asset: their home. So couples must be aware of the many roads this process can take.

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Married couples who own real property together have many options when deciding how to share the asset. Traditional approaches include joint tenancy, tenancy in common, tenancy by the entirety, and community property. All have advantages and disadvantages. Joint tenancy is a form of concurrent ownership where each owner has an equal interest in the property. It is available to unmarried couples, though I will focus on married couples in this article.

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Arguably, the most useful feature of a joint tenancy arrangement is the “right of survivorship.” When the first spouse dies, their stake in the property passes directly to the surviving spouse without the need for probate administration. During probate, a court determines the decedent’s estate documents’ validity and helps to settle any claims against the estate before the property is distributed to the heirs. Avoiding this process can save the beneficiary of an estate substantial costs and time. By foregoing probate, the surviving spouse also gains additional privacy since the probate process is a public record matter.

Tenancy in common usually does not have the right of survivorship. However, it allows other customizations and offers greater flexibility. As in joint tenancy, tenants in common do not have to be married; unlike in joint tenancy, tenants may hold unequal interests in the property. Tenancy in common is not dissolved when one of the tenants dies, either. If John and Jane are tenants in common, each with a 50 percent interest in their property, John can bequeath his 50 percent to their son John Jr., and Jane’s interest will remain unaffected.

Tenancy by the entirety is available only to married couples, though Hawaii and Vermont offer domestic partners options and those in civil unions, respectively. It is as if the property is owned by a single entity (the couple) instead of two parties for legal purposes. Neither party can dissolve the tenancy without the other’s consent, except in divorce or annulment cases. Like joint tenancy, the entirety’s tenancy offers a right of survivorship, allowing the surviving spouse to avoid probate. It can also shield the property from one spouse’s creditors only, though not from creditors to whom the couple is jointly in debt. Not all U.S. jurisdictions recognize tenancy by the entirety.

Community property laws exist in only nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, couples may enter into community property arrangements but must sign agreements or form a trust. The validity of such arrangements is still untried on a federal level, though, and it is unclear whether the Internal Revenue Service will honor them for federal tax purposes.

Although the specifics of community property laws vary from state to state, the basic idea is the same. Like tenancy by the entirety, community property is an option only for married couples. Generally, any spouse’s property during the marriage becomes community property unless it is a gift or an inheritance. Property owned before the marriage is also excluded. Spouses may enter into agreements, such as prenuptial or postnuptial arrangements, that preclude otherwise eligible property from being subject to community property laws or convert separate property to community property.

Community property has no right to survivorship. Each owner can dispose of his or her interest individually. As a result, most transfers will be subject to probate without additional estate planning, even if one spouse leaves the entirety of their interest to the other. Creditors can also generally reach the deceased spouse’s interest through normal estate administration rules. Community property offers the advantage of allowing a full step-up in basis upon either spouse’s death, which typically allows the survivor to pay taxes on a smaller capital gain should the property be sold.

This is illustrated in the example below, contrasting joint tenancy with community property:

John and Jane purchased a home for $1 million, and it is now worth $2.5 million. Jane has died, and John inherited the home. If they owned the property as joint tenants with the right of survivorship, John’s basis in the property is $1.75 million. This is because only Jane’s half of the interest is stepped up to the current market value ($1.25 million). John’s half of the interest’s cost basis continues to be based on the $1 million purchase price ($500,000). In contrast, both John’s and Jane’s interests would be stepped up to the home’s current market value if they had owned it as community property, and John would inherit the home with a cost basis of $2.5 million. This could mean a significant reduction in taxable capital gains if John were to sell the property after Jane’s death, even allowing for a potential reduction due to the home-sale exclusion rule. This would also be the case for other property, such as investment assets, owned by the couple.

All of these arrangements offer benefits and drawbacks, which may weigh differently depending on a couple’s situation. The entirety’s joint tenancy and tenancy allow the surviving spouse to avoid probate but do not offer community property’s generous terms for a full step-up in the property. Community property risks giving creditors access to the decedent’s portion of the property and allows more flexibility in the way that property is distributed. Tenancy in common offers unequal interests in the property but does not have a right of survivorship.

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In certain states, couples have yet another relatively new option: community property with the right of survivorship. In several states, the law has been on the books for less than 15 years. California – the state that has arguably received the most attention on the topic – first implemented these ownership rights in 2001. Of the nine community property states, Arizona, California, Idaho, Nevada, Texas and Wisconsin currently offer survivorship options. Laws also vary by state regarding which property is eligible to be titled as community property with the right of survivorship. For example, only real property may be titled this way in Idaho.

The states that offer community property with the right of survivorship seek to make it easier for couples with relatively simple estates to transfer property to a surviving spouse. Before the advent of community property with the right of survivorship, married couples had to draft special agreements or use trusts to convert the joint property into community property. Community property with the right of survivorship allows married couples to take advantage of the full step-up basis while avoiding probate administration, all without the need for more complex estate planning.

Like any estate planning method, community property with the right of survivorship is not a cure-all. For example, should bankruptcy be a concern, joint tenancy or (in some cases) tenancy by the entirety would leave the non-debtor’s property out of the bankruptcy proceedings. In contrast, property held as community property, with or without the right of survivorship, would move entirely to the bankruptcy trustee’s control until proceedings were complete. Couples should carefully examine their situations before deciding which arrangement is likely to carry the most benefits.

Though this option is not prevalent nationwide, financial advisors should be aware of its benefits and potential drawbacks. Even if a couple does not currently live in a community property state, they may have once lived in such a state or move to one in the future. If a client lived and purchased real estate in a state that offered community property with the right of survivorship, the property may continue to be characterized that way, even if the owners have since moved elsewhere.

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