Owning It on Your Own
When taking title in your own name, there are several options, and it depends on your marital status. For example, if you are a single man named Robert Homer, you would take title as “Robert Homer, an unmarried man”, or “Bethena Homer, an unmarried person.”
If you take property in your own name but are married, and wish to indicate that it will remain your sole and separate property then title can be taken as follows: “Robert Homer, a married person, as their sole and separate property.” A quitclaim deed signed by the non-owning spouse will reflect the understanding and intent that Robert Homer owns it on their own.
Co-Ownership
Community Property
For married couples or those in a registered domestic partnership, they can elect to hold title as community property. Under community property, the spouses or partners own the property together 50%/50%, but transferring ownership of the property requires a signature from both parties while they are alive. When a marriage ends because of a death, so does the community, and if there is no will designating someone else other than the surviving spouse as the beneficiary, then the surviving spouse will inherit the property in whole.
However, if there is a will designated someone other than the surviving spouse, for example, Husband dies and prior to this death he executes a valid will that gives everything to this younger brother, then the surviving spouse now shares a one-half interest with Brother as Tenants in Common. Holding title as Tenants in Common means that they each hold a distinct share of the property, and their shares do not pass to the survivor upon death.
Community Property with Right of Survivorship
Much like holding title as community property, this type of co-ownership requires the parties be married, or in a registered domestic partnership, and transferring the property requires the sign off of both people. However, unlike the a regular community property arrangement, the right of survivorship option makes this so that neither people can will or devise this property to anyone else after death, at least not successfully. This means that no matter what each person’s will says, the survivor between the two will inherit the property in its entirety by operation of law.
This is a good way to hold title if they want to ensure that the spouse will inherit the property without any legal complications after death.
Joint Tenancy
A Joint Tenancy allows more than one person to own a property together. There is no registered domestic partnership or marriage requirement, and the last survivor in the joint tenancy will own the property outright, as long as nothing was done to sever the tenancy. Unlike in a community property, any person in the joint tenancy can transfer their interest to someone else without the consent of others. For example, an unmarried couple, Jane and Bob acquire title to a property as joint tenants. Then five years before his death, Bob transfer his interest in the property to his sister Nadia. The moment the transfer is done, the Nadia and Jane own the property as Tenants in Common even if Jane never consented to this nor have any knowledge of this act. Property interests owned as tenants in common does not provide for a survivorship interest, and the interest without any estate planning (a will or trust for instance) will likely by default go their their respective descendants through intestacy and through probate.
Tenancy in Common
Tenancy in Common is one of the most flexible forms of co-ownership available. It allows two or more individuals to own a property together without any requirement for marriage, partnership, or even a close personal relationship. Each tenant holds a distinct, separate share of the property, which can be unequal. For example, one owner might hold 60% of the property while another owns 40%. The most critical feature of Tenancy in Common is that there is no right of survivorship. This means that when one owner passes away, their share does not automatically transfer to the surviving owners. Instead, the deceased owner’s share passes according to their will or, if they died intestate, through the state’s intestacy laws.
In a Tenancy in Common arrangement, any co-owner can transfer or sell their interest in the property without needing the approval or consent of the other owners. This could lead to unexpected situations where one co-owner might sell their share to an outsider or leave it to someone in their will, creating new ownership dynamics. For example, if Bob and Jane are Tenants in Common and Bob leaves his share to his brother, Jane would now co-own the property with Bob’s brother, whether or not she knows or agrees with this new co-ownership. This flexibility, while convenient for estate planning and financial purposes, can lead to complications if co-owners don’t clearly communicate their intentions.