The right of survivorship determines whether property skips probate—or sparks a legal dispute. In California, this powerful legal principle allows a surviving co-owner to automatically inherit the deceased owner’s share of real estate—but only if title is held in a very specific way. When survivorship rights are not clearly stated in the deed, the property is treated as a tenancy in common, and disputes often lead to partition actions.
The right of survivorship plays a central role in real estate co-ownership disputes, with significant consequences when ownership expectations don’t match what’s written on the title.
Contact California Partition Attorneys Who Understand Survivorship Disputes
Talkov Law is California’s leading law firm exclusively dedicated to partition actions. We’ve handled partition cases across California, including complex disputes involving alleged survivorship rights, unclear title language, and competing ownership claims.
We know how to navigate these legal issues and protect your interest in jointly owned property.
What Is the Right of Survivorship?
The right of survivorship is a legal principle that automatically transfers a deceased co-owner’s share of real estate to the surviving owner(s) without requiring probate.
This transfer happens instantly and bypasses the court system—but only if survivorship rights are clearly stated in the recorded title.
When Does the Right of Survivorship Apply in California?
There are two main forms of co-ownership in California that include the right of survivorship:
- Joint Tenancy
- Community Property with Right of Survivorship (available only to spouses or registered domestic partners)
If the deed doesn’t include one of these specific structures, survivorship does not apply—regardless of the parties’ intentions.
Joint Tenancy with Right of Survivorship
In a joint tenancy, two or more individuals own property together with equal interests. A key feature of joint tenancy is the Right of Survivorship: when one owner dies, their interest automatically passes to the remaining co-owner(s), outside of probate.
Example:
If siblings John and Mary hold title as “joint tenants,” and John passes away, Mary becomes the sole owner—regardless of John’s will or any claims from his heirs.
To be legally valid, this type of ownership must be clearly stated on the deed with language such as:
“John Doe and Mary Doe, as joint tenants with right of survivorship.”
If the deed is silent or ambiguous, California law treats the co-ownership as a tenancy in common, which does not include survivorship rights. This is based on Civil Code § 683, which requires joint tenancy to be expressly declared in writing.
Community Property with Right of Survivorship
Married couples and registered domestic partners in California can hold title as community property with right of survivorship. This form of ownership combines the survivorship features of joint tenancy with the tax benefits of community property, including a full step-up in basis.
Example:
Joe and Jane, a married couple, hold title as “community property with right of survivorship.” When Jane dies, Joe becomes the sole owner without going through probate.
This method must also be clearly stated in the deed. Without this language, even spouses are presumed to hold title as tenants in common, which lacks automatic survivorship.
Tenants in Common: No Survivorship Rights
Unless joint tenancy or community property with survivorship is properly established in writing, co-owners are considered tenants in common by default.
Under Civil Code § 682, tenancy in common is presumed when multiple parties own real estate in California without specific title language. This form of ownership:
- Allows unequal shares
- Permits each owner to transfer or will their interest independently
- Offers no right of survivorship
If one co-owner dies, their share becomes part of their estate and passes to heirs—not the surviving co-owner. This frequently results in competing claims and partition lawsuits.
Survivorship in Partition Actions
Disputes about the Right of Survivorship often arise in partition lawsuits, particularly when:
- A surviving co-owner claims full ownership based on an oral understanding
- Heirs of the deceased co-owner claim a legal interest in the property
- The deed lacks clear survivorship language
- One party relies on a verbal agreement rather than recorded title
Even if parties claim they had a verbal agreement, those arguments are typically rejected under California’s Statute of Frauds (Civil Code § 1624(a)(3)), which bars oral agreements concerning real property interests.
If survivorship cannot be proven through the deed, the court will treat the co-owners as tenants in common—making the property subject to partition by sale or division.
Why Survivorship Language Matters
Creating a valid right of survivorship in California requires clear, written language in the deed. Oral agreements, email exchanges, and family discussions are not enough.
Acceptable deed phrases include:
- “As joint tenants with right of survivorship”
- “As community property with right of survivorship”
Without these phrases, California law defaults to tenancy in common, with no automatic transfer rights.
Severing a Joint Tenancy
Sometimes, co-owners would prefer not to be in a joint tenancy, but rather would like to decide where to leave their property if they die under a will, a trust, or simply under the default rules when there is no will or trust known as intestate secession. In those situations, it is critical for a joint tenancy severance to be recorded in compliance with California law.
Talk to California’s Leading Partition Attorneys
If you’re facing a dispute involving co-ownership, survivorship rights, or unclear title language, Talkov Law can help. Our attorneys understand how these legal structures impact partition actions, probate, and long-term ownership rights.
Call Talkov Law at or contact us online for a free consultation with one of our eleven experienced partition attorneys.
