Avoiding Probate With Survivorship Community Property

If you live in a community property state, you and your spouse (or registered domestic partner) may be able to avoid probate by taking title to property as "community property with the right of survivorship" or "survivorship community property." If this option is available to you, it's likely to be a better choice than joint tenancy. (Tenancy by the entirety, another probate-avoiding way for couples to hold title, is not available in community property states.)

States With "Community Property With Right of Survivorship"

Community Property Basics

Community property is a legal classification, imposed by law—it applies to certain property no matter how you hold title to it. If you live in a community property state, most property acquired by you or your spouse during the marriage is automatically community property, unless you agree otherwise. Your earnings, for example, are community property, and so is everything you buy with those earnings.

In other words, property that is community property is owned by both spouses (not just one spouse).

There are exceptions. Property inherited by just one spouse, for example, is not community property. And spouses may sign an agreement stating that their earnings or other property are not community property.

Survivorship Community Property vs. Community Property

So what is community property with the right of survivorship? It is community property with an added feature: when one spouse dies, it passes automatically to the surviving spouse.

Survivorship community property is a way of holding title to specific assets that is available only to married couples (or registered domestic partners). In that way, it's like "tenancy by the entirety." A couple buying a house, for example, can state on the deed that they're taking title to the property as survivorship community property. They each own half of the property. When one spouse dies, the deceased spouse's half of the property automatically passes to the surviving spouse, who then owns the entire property.

Survivorship Community Property vs. Tenancy by the Entirety vs. Joint Tenancy

There is more than one way to co-own property with the right of survivorship:

• survivorship community property
• joint tenancy with right of survivorship, and
• tenancy by the entirety.

So how do you know which co-ownership method is right for you? To begin with, not all ownership options are available in all states. And some options are available only to married spouses or registered domestic partners. To learn more about the differences, see Avoiding Probate with Joint Ownership.

In addition, different ways of owning property may have different tax consequences. For example, in California, you might receive a stepped-up basis only on the deceased spouse's half of the property if you owned the property as joint tenants; if you owned it as survivorship community property, you might receive a stepped-up basis (which is advantageous) on the entire property. Speak to an estate planning lawyer or accountant if you're interested in learning more.

How Survivorship Community Property Avoids Probate

Holding property as survivorship community property has certain consequences:

• as mentioned, when the first spouse or partner dies, the whole property automatically belongs to the surviving spouse, and
• the property does not need to go through probate to be transferred to the surviving spouse.

If you hold title as "community property with right of survivorship," then when one spouse dies, the other will automatically own the community property. No probate process or probate court procedures will be necessary to make the transfer. The process of transferring title to the surviving spouse will be simple. The exact steps depend on the type of property, but generally all the new owner has to do is fill out a straightforward form and present it, with a death certificate, to whoever keeps the ownership records: a bank, state motor vehicles department, or the county land records office.

EXAMPLE: Michael and Marla, who live in Nevada, took title to their house as "community property with right of survivorship." After Michael dies, Marla takes his death certificate to the office of the county registrar of deeds. She fills out and files the form provided by that office, which asks her for some basic information about her late husband and the property. When the form is recorded (filed) by the registrar of deeds, it's proof (just as a probate court order would've been) that Marla now owns the entire property.

Creating or Removing Survivorship Community Property

To turn property into right-of-survivorship community property, you simply need to put the right words on the title document.

Adding the Right of Survivorship to Community Property

Spouses are free to change their minds and remove the survivorship provision later, but it must be done in writing. They should prepare a new title document that does not include the right of survivorship.

EXAMPLE: When Liz and her husband Fernando bought their vacation house, they directed the title company to state on the deed to the property that they would own it as community property with right of survivorship.

Years later, they decide that they want Fernando's son, Robert, to inherit his father's half-interest in the house. Liz and Fernando sign and record a new deed, changing the way they hold property to plain "community property." In his will, Fernando leaves his half-interest to Robert.

A spouse may also be able to act alone to revoke a right of survivorship. In Nevada, a spouse can wipe out the right of survivorship by transferring his or her half-interest in the property. And in Arizona, to remove the right of survivorship from a piece of real estate, either spouse can file a sworn statement, called an "affidavit terminating right of survivorship," with the county recorder in the county where the real estate is located. The state statute sets out what information the affidavit must contain.

To learn about other ways to avoid the probate process, see Ways to Avoid Probate.