Question 1

What happens to a joint tenancy with right of survivorship at death?

Accepted Answer

At death, the deceased joint tenant’s interest immediately and automatically vests in the surviving joint tenant(s) by operation of law. No probate proceeding is required. The surviving tenant records a certified death certificate and an affidavit of survivorship in the county official records to establish clear title. If there were three joint tenants (A, B, C) and A dies, B and C each hold 50% as JTWROS. When B subsequently dies, C owns 100%. The survivorship right cannot be defeated by the deceased tenant’s will, trust, or creditors (generally). This automatic transfer is one of the primary reasons people choose JTWROS for co-owned property.

Question 2

Can a creditor of a deceased Florida joint tenant reach the property?

Accepted Answer

Generally no. When a joint tenant dies, their interest is extinguished and the surviving tenant’s ownership is not derived from the deceased tenant but from the original deed. The deceased tenant’s creditors generally cannot reach the property after death because the deceased no longer has an interest to attach. However, creditors of the surviving tenant can reach the property. Important exceptions: federal tax liens (the IRS can reach joint tenancy property under certain circumstances), Medicaid estate recovery (the state may seek recovery from jointly held property in some situations), and if the joint tenancy was created to defraud creditors, a court may set aside the conveyance as a fraudulent transfer under FUFTA.

Question 3

Is a joint tenancy with right of survivorship the same as community property?

Accepted Answer

No. Florida does not recognize community property (which is used in states like California, Texas, and Arizona). In community property states, property acquired during marriage is automatically owned equally by both spouses. In Florida, property acquired during marriage by one spouse is that spouse’s individual property unless the other spouse is added to the title. JTWROS is a voluntary co-ownership arrangement that must be expressly created by deed, is not limited to spouses, and provides survivorship rights. Florida’s equivalent of community property for married couples is tenancy by the entirety, which is automatically created when a married couple takes title together.

Joint Tenancy with Right of Survivorship

Joint Tenancy with Right of Survivorship

Death Transfer

Creditor Protection

JTWROS vs. Community Property

Related Terms

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