Joint Tenancy vs. [Tenants in Common](/blog/tenants-in-common-guide): How to Choose the Right Ownership Structure

How you hold title to a property affects what happens when you die, how much you pay in taxes, whether you can sell your share independently, and how creditors can reach the property. For something this consequential, a surprising number of buyers just check a box on the deed without understanding what they're choosing.

Joint tenancy and tenants in common are the two most common forms of co-ownership in the United States. They look similar on the surface — two or more people sharing ownership of one property — but they work in fundamentally different ways with very different consequences.

This guide explains both structures in detail so you can make the right choice for your situation.

Quick Comparison

Joint Tenancy Explained

How It Works

Joint tenancy is a form of co-ownership where two or more people own equal shares with a right of survivorship. This means when one joint tenant dies, their share automatically transfers to the surviving joint tenant(s) — outside of probate, without a will, and regardless of what the deceased owner's will says.

If Alice and Bob own a house as joint tenants and Alice dies, Bob automatically owns 100% of the house. Alice's will is irrelevant. Her heirs have no claim to the property. The transfer happens by operation of law the moment Alice dies.

The Four Unities

For a valid joint tenancy to exist, four conditions (called the "four unities") must be met:

1. Unity of time. All joint tenants must acquire their interest at the same time.
2. Unity of title. All joint tenants must acquire their interest through the same deed or document.
3. Unity of interest. All joint tenants must have equal ownership shares.
4. Unity of possession. All joint tenants have equal rights to possess and use the entire property.

If any of these unities is broken, the joint tenancy may be severed and converted to a tenancy in common.

How Joint Tenancy Is Severed

A joint tenancy can be destroyed — intentionally or accidentally:

• Sale or transfer. If Alice sells her joint tenancy interest to Carol, the joint tenancy between Alice and Bob is severed. Carol and Bob now hold the property as tenants in common.
• Mortgage (in some states). In "title theory" states (like Georgia and Massachusetts), taking out a mortgage on a joint tenancy interest can sever it, because the mortgage temporarily transfers title to the lender. In "lien theory" states (like [California](/blog/california-heloc-guide) and New York), a mortgage creates a lien but doesn't transfer title, so it doesn't sever the joint tenancy.
• Lease (in some states). Whether a lease by one joint tenant severs the joint tenancy depends on state law.
• Mutual agreement. Joint tenants can agree to convert to tenants in common.
• Partition action. Any joint tenant can file for partition, which severs the joint tenancy.

Joint Tenancy With Right of Survivorship (JTWROS)

You'll often see the abbreviation JTWROS on deeds and financial accounts. This is the full, proper name for what most people just call "joint tenancy." The "with right of survivorship" language is technically redundant in most states (since right of survivorship is inherent in joint tenancy), but it's included for clarity and to prevent any argument that a tenancy in common was intended.

Some states require specific survivorship language. In Ohio, for example, the deed must explicitly state "for their joint lives, remainder to the survivor" to create a joint tenancy with survivorship rights.

Tenants in Common Explained

How It Works

Tenants in common (TIC) is a more flexible form of co-ownership. Each owner holds a separate, undivided fractional interest in the property. Shares can be unequal — one person can own 80% while another owns 20%. There's no right of survivorship; when a TIC owner dies, their share goes to whoever they designate in their will (or to their heirs under intestacy laws).

No Special Requirements

Unlike joint tenancy, TIC has no unity requirements:

• Co-owners can acquire their interests at different times
• Through different deeds
• In different proportions
• The only requirement is unity of possession — all co-owners have the right to use the entire property

Default Form of Ownership

In most states, when a deed conveys property to two or more unmarried people without specifying the type of co-ownership, they're presumed to be tenants in common. This default can vary:

• Most states: TIC is the default for unmarried co-owners
• Some states (like Oregon): TIC is the default for all co-owners, including married couples
• Some states: Joint tenancy is presumed for married couples

The Survivorship Question: The Biggest Decision

The right of survivorship is the single most important difference between these two structures, and it's the factor that should drive your decision in most cases.

When Survivorship Makes Sense

Married couples buying a home. Most married couples want the surviving spouse to automatically receive the deceased spouse's share of the home. Joint tenancy (or in community property states, community property with right of survivorship) achieves this simply and cheaply, without probate.

Elderly parents adding an adult child to a deed. Some parents add one child as a joint tenant to ensure a smooth transfer at death. (Though this approach has significant tax and Medicaid implications — see below.)

Partners who want automatic transfer. Unmarried partners who want the survivor to inherit the property can use joint tenancy to bypass the probate process.

When Survivorship Doesn't Make Sense

Business partners or investors. If you die, you probably want your investment share to go to your heirs, not your business partner. TIC preserves this right.

Co-owners with different estate plans. If Alice wants her share to go to her children and Bob wants his share to go to his partner, TIC lets each owner control the disposition of their share through their estate plan.

Unequal contributions. If one buyer puts in 70% of the purchase price, joint tenancy forces equal 50/50 ownership. TIC allows a 70/30 split that reflects actual contributions.

Blended families. A married couple where each spouse has children from prior relationships may prefer TIC so each spouse can leave their share to their own children. With joint tenancy, the surviving spouse gets everything, and the first-to-die's children may receive nothing.

Tax Implications: Where It Gets Complicated

The [Stepped-Up Basis](/blog/selling-inherited-property) Difference

This is one of the most significant and least understood tax differences between joint tenancy and TIC.

Joint tenancy: When one joint tenant dies, only the deceased owner's share receives a stepped-up basis. In a 50/50 joint tenancy, the surviving owner's half retains its original [cost basis](/blog/real-estate-depreciation-explained).

Example: Alice and Bob buy a house as joint tenants for $400,000 ($200,000 each). When Alice dies, the house is worth $800,000. Bob's basis becomes:

• His original share: $200,000 (no step-up)
• Alice's share: $400,000 (stepped up to half the current fair market value)
• Total basis: $600,000

If Bob sells for $800,000, he has a $200,000 taxable gain.

Community property (in community property states): When one spouse dies, BOTH halves receive a stepped-up basis. In the same scenario, Bob's total basis would be $800,000 — the full fair market value at Alice's death. Zero taxable gain.

This difference can cost tens of thousands of dollars in capital gains taxes. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin), think carefully before using joint tenancy instead of community property for a marital home.

Estate Tax Treatment

Joint tenancy: The IRS presumes that the first-to-die owned the entire property for estate tax purposes, unless the surviving owner can prove they contributed to the purchase. Between spouses, exactly half is included in the first-to-die's estate regardless of contribution.

TIC: Each owner's actual percentage interest is included in their estate.

Gift Tax Implications

If you add someone to a deed as a joint tenant and they didn't contribute to the purchase, you've made a gift of half the property's value. If that value exceeds the annual gift tax exclusion ($18,000 in 2026), you'll need to file a gift tax return. Adding a spouse is exempt from gift tax due to the unlimited marital deduction.

Creditor and Liability Issues

Joint Tenancy

A creditor with a judgment against one joint tenant can place a lien on that person's interest. In most states, if the creditor forces a sale of that interest, the joint tenancy is severed. However, if the debtor-joint tenant dies before the creditor acts, the right of survivorship may extinguish the creditor's claim — the property passes to the surviving joint tenant free of the lien.

This creates a race condition: if the creditor moves fast enough to sever the joint tenancy (through a forced sale or lien enforcement), they can reach the property. If the debtor dies first, the creditor may lose out.

Tenants in Common

A creditor can place a lien on a TIC owner's interest and potentially force a partition sale. Since there's no survivorship, the debtor's death doesn't extinguish the creditor's claim — the lien follows the interest to whoever inherits it.

Medicaid and Long-Term Care Planning

Joint tenancy can create serious problems for Medicaid planning:

• Look-back period. Adding someone as a joint tenant on your home may be treated as a gift for Medicaid purposes. If you apply for Medicaid within the 5-year look-back period, this transfer could trigger a penalty period during which you're ineligible for benefits.
• Estate recovery. After a Medicaid recipient dies, the state can seek reimbursement from their estate. In some states, this includes the deceased person's interest in jointly held property.
• Loss of control. Once you add a joint tenant, they have equal ownership. If you need to sell the property to pay for care, the joint tenant must agree.

Consult an elder law attorney before making any changes to property ownership if Medicaid eligibility is a concern.

Community Property States: A Third Option

If you live in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin) or Alaska (which allows opt-in community property), you have a third option: community property with right of survivorship.

This gives you:

• The automatic transfer benefit of joint tenancy (no probate)
• The full stepped-up basis benefit of community property (both halves get a step-up at first death)

For married couples in community property states, this is almost always the best choice for a primary residence. It combines the best features of both joint tenancy and community property.

Tenancy by the Entirety: The Married-Couples-Only Option

About 25 states recognize tenancy by the entirety, which is available only to married couples (and in some states, registered domestic partners). It works like joint tenancy with right of survivorship, but with an added benefit: creditor protection.

In a tenancy by the entirety, a creditor of only one spouse generally cannot force a sale of the property or place a lien on it. Both spouses must be liable for the creditor to reach the property. This makes it a powerful [asset protection](/blog/real-estate-llc-guide) tool.

States that recognize tenancy by the entirety include Florida, Maryland, Massachusetts, Michigan, New York, North Carolina, Pennsylvania, Virginia, and others. Requirements and protections vary by state.

How to Choose: A Decision Framework

Step 1: Are You Married?

If yes: Consider community property with right of survivorship (if in a community property state), tenancy by the entirety (if available), or joint tenancy. TIC is best if you have children from prior relationships and want your share to go to your children, not your spouse.

If no: Proceed to Step 2.

Step 2: Do You Want Automatic Survivorship?

If yes: Joint tenancy. Make sure all four unities are met and the deed includes survivorship language.

If no: Tenants in common. This gives each owner control over what happens to their share after death.

Step 3: Are Ownership Shares Equal?

If no: You must use tenants in common. Joint tenancy requires equal shares.

If yes: Either structure works. Base the decision on survivorship preferences and tax considerations.

Step 4: Consider Tax Implications

• In community property states, community property title almost always beats joint tenancy for tax purposes.
• For non-spouses, consider the capital gains implications of each structure.
• Consult a tax advisor if the property has significant appreciated value.

Step 5: Get It in Writing

Whichever structure you choose, consider a co-ownership agreement that covers:

• Financial responsibilities
• Use and occupancy rights
• What happens if one owner wants out
• Dispute resolution procedures

Switching Between Joint Tenancy and TIC

From Joint Tenancy to TIC

Any joint tenant can unilaterally sever the joint tenancy by transferring their interest (even to themselves through a straw-man transaction or, in some states, by recording a declaration of severance). This converts the ownership to TIC.

From TIC to Joint Tenancy

This requires all co-owners to agree and execute a new deed that meets the four unities. In most cases, all TIC owners would deed the property to themselves as joint tenants in a single transaction.

Costs

Changing the form of ownership requires a new deed, which means:

• Deed preparation: $100–$300
• Recording fees: $10–$75
• Potential transfer taxes (though most states exempt transfers that don't change beneficial ownership)
• Attorney review: $200–$500

Frequently Asked Questions

Can joint tenants have unequal shares?

No. Joint tenancy requires equal ownership. If you want unequal shares, you must use tenants in common.

Does joint tenancy avoid all probate?

It avoids probate for the surviving owner(s) when a joint tenant dies. However, the last surviving joint tenant's interest will go through their probate estate (unless other estate planning tools, like a living trust, are in place).

Can I leave my joint tenancy share to someone in my will?

No. The right of survivorship overrides your will. If you want to leave your share to a specific person, you need tenants in common.

What happens if joint tenants die simultaneously?

Most states have a Uniform Simultaneous Death Act provision: if joint tenants die simultaneously (or within a short period, typically 120 hours), each person's share is treated as if they survived the other. In practice, each half passes through each person's separate estate. The right of survivorship doesn't apply.

Can a married couple be tenants in common?

Yes. There's no requirement that married couples use joint tenancy or community property. However, it's uncommon and should be a deliberate choice (usually for estate planning reasons in blended families).

Which is better for estate planning?

Neither is inherently "better." The right choice depends on your family situation, tax circumstances, and estate plan. A couple with a simple estate (everything goes to the survivor, then to shared children) may prefer joint tenancy for its simplicity. A couple with complex estates, blended families, or significant assets may benefit from TIC combined with trusts.

Can three people be joint tenants?

Yes. When one of the three dies, the remaining two continue as joint tenants with equal shares (now 50/50 instead of 33/33/33).

The Bottom Line

The choice between joint tenancy and tenants in common comes down to three core questions:

1. Do you want automatic survivorship? If yes, joint tenancy. If no, TIC.
2. Do you need unequal shares? If yes, TIC is your only option.
3. What are the tax consequences? In community property states, community property title usually beats both.

Don't default into a decision. The way you hold title to a property is one of the most important legal and financial decisions you'll make as a property owner. Spend the $200–$500 for a [real estate attorney](/blog/how-to-build-real-estate-team) or estate planning attorney to review your specific situation before you sign the deed. The cost of getting it wrong — in taxes, probate fees, or family disputes — is far higher.

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