MARITAL PROPERTY: The Difference Between Joint Tenancy and Community Property
What is the most favorable title between spouses? Joint tenancy and community property have much in common but there are some notable differences.
Joint tenancy is a type of co-ownership where two or more people, oftentimes spouses, individually own an undivided whole of the property and together are regarded as a single owner. For instance, although a couple owns their house jointly, each of them own it wholly with no fractional ownership. A noteworthy characteristic of joint tenancy is its right of survivorship. When one joint tenant passes, their interest automatically vests to the surviving joint tenant(s). At this point, the surviving spouse is left with the whole property interest. Because the interest vests through the title itself, a joint tenancy overrides the language in the will of the deceased joint tenant. This means the deceased may not successfully give their part of the community property to someone else other than the remaining joint tenant.
California is one of nine states that recognize community property, which includes everything acquired and treated by either spouse during the marriage. For example, if a wife uses community property bank account to pay mortgage on a separate house. The house is now community property. State laws differ on what happens if a spouse passes intestate (without a will). Some states give it all to the remaining spouse, some to children and the remaining spouse, and finally California to the remaining spouse. Thus community property can be unlike joint tenancy where neither spouse cannot bestow their share to anyone other than their spouse. Like joint tenancy, if the interest of the deceased spouses automatically vests to the remaining spouse, then no probate is necessary. The only paperwork that may be required is a summary and a court confirmation procedure. If a couple wants to ensure that the interest automatically passes, they should include the following language: “community property with right of survivorship.”