It is important to know how the ownership of a shared property works, both when the owning parties are alive or with one of them being deceased. community property with right of survivorship is a legal distinction that allows spouses to share and allocate the ownership of shared property. But how does it work?
We never expect the unexpected and never want to lose the ones we deeply love. But we should always secure the future of our loved ones by making plans. Go through this article to know how to easily pass on a property to a surviving spouse without having them awaiting probate.
What Is Community Property With Right Of Survivorship?
Getting married is one thing. But securing the life of your spouse (even after your death) is another thing. Death can be surprising, making the transfer of assets and wealth difficult from the dead spouse to the surviving one. But the probation period can be avoided making the life of the surviving spouse easier – all through the community property with right of survivorship. But what is it?
Simply put, it is a legal distinction where both spouses share assets equally through their marriage. Not only that, a dead spouse can immediately pass on the asset to their surviving spouse without getting them through probate. However, community property is only recognized in several of the states in the US. It is always a better method for holding or transferring title to the surviving spouse than other methods like joint tenancy.
According to this method, an individual holds an asset jointly with their spouse equally. They can also pass on half of any property they own upon their death. Most importantly, the spouses can avoid probate as a benefit of the community property method.
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What Happens To Community Property Upon Death Of One Spouse?
According to the community property, when one spouse dies, the other spouse gets complete ownership of the asset or the property. As an example, if a married couple buys a house under the community property method, they can own the asset equally. Also, when one of them dies, the ownership of the property gets fully transferred to the surviving spouse.
This way, the ownership of the property does not get inherited by the surviving spouse. Instead, it is transferred, helping them to avoid probate in the process. The surviving spouse will also have the qualification for a double step-up in tax basis for the community property. If it is a house, then it will be taxed according to its value at the time of the spouse’s death.
What Is The Community Property With Right Of Survivorship In Real Estate?
Just as explained before, the same term applies widely in the real estate world. Right of survivorship is a common term in the real estate industry, and this legal term often reiterates itself on several types of jointly owned properties. Right of survivorship in real estate means – when one of the owners of a jointly owned property dies, they automatically transfer their share of the property to the surviving party. This is irrespective of what the deceased party had documented in their will.
According to the right of survivorship, both owners have the right and assurance of staying in the property if one of them were to be deceased. According to this right, the other share cannot be left with any other party claiming to own it.
Community Property With Right Of Survivorship Vs Community Property
So, is there any difference between a community property with right of survivorship and a community property in general? Well, there is. Community properties are the assets that a couple owns during their marriage. However, if one of the spouses holds any properties from before their marriage, it does not go under the community property.
In this case, if the spouse holding any asset before the marriage dies, the property will not transfer to the surviving spouse. But, if the deceased spouse mentions that in the will, then the surviving spouse can take ownership of that asset.
But a community asset can also create problems if the owner leaves half of their asset to someone else before their death. The community property with right of survivorship method helps solve this problem of ownership post-death of one of the spouses.
Under this legal distinction, when one of the spouses dies, they are leaving half of the asset with the surviving spouse. The surviving spouse will have ownership of the complete asset despite what is documented in the deceased spouse’s will.
Community Property Vs Joint Tenancy
It is common to confuse joint tenancy and community property since both function almost similarly. But, if inspected, community property with right of survivorship only combines both joint tenancy and the elements of community property.
The California Legislature created the legal distinction now called community property with right of survivorship. The intention was to combine the tax benefits of community properties with the protection of owning a property that joint tenancy offers.
Joint tenancy allows the surviving spouse to automatically get the ownership of the deceased spouse’s assets transferred to them. But the survivorship rights of the community property add the outstanding tax benefits on top. This way, the surviving spouse can own the complete asset while also enjoying surprising tax benefits.
Can A Right To Survivorship Override An Inheritance Claim?
Yes. You might wonder what happens when the deceased spouse also leaves a share of their asset to a third party despite having the property under the right of survivorship. Well, the right of survivorship is a strong legal right. Once spouses agree on it, they are legally required to transfer their assets to the surviving spouse upon their death – despite what they have documented in their will.
So, if a man marks his house under community property with a right of survivorship, he will pass on his part of the house to his wife upon death. This is although he might have left his share to his nephew according to his will.
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Bottom Line
So, as you can easily understand, that community property with right of survivorship helps easily pass on a property to a surviving spouse. It helps ensure that the surviving spouse can keep there and their partner’s share of the property with double step-up tax benefits.
However, you should know that it is only an option in the community property states.
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