Can Joint Tenants With Right of Survivorship be Contested?

Posted Sep 14, 2023


When two or more people own real property together, and they want to ensure a smooth and legally airtight transfer of the property to the surviving owners in the event that one or more owners die, they deed the asset as a joint tenancy. 

A joint tenancy includes right of survivorship, which means that the surviving owners automatically assume full ownership of the property when one owner passes. In certain instances, however, right of survivorship can be legally contested. Let’s take a closer look. 

What is a Right of Survivorship in a Joint Tenancy? 

In a joint tenancy, two or more owners share undivided interests in a property regardless of whether one owner has more money invested in the asset versus the others. All owners enjoy equal right to occupy and use the property, and they all are responsible for any financial obligations for repairs or maintenance, as well as any profits generated from the property if it’s held as an investment. 

Married couples, close relatives, and like-minded business partners often title property as a joint tenancy to ensure that the other party assumes full ownership of the asset in the event that one owner dies. Right of survivorship ensures that a deceased owner’s shares of the property are automatically transferred to the survivor(s) without having to go through probate, which can be important for investment properties if key management or strategic operating decisions arise, or if there is an immediate need to divest the asset to increase liquidity. Keeping the property separate from the decedent’s estate avoids any delays while the deceased owner’s affairs are settled in court.  

For married couples, right of survivorship ensures that full ownership of a property can’t be legally challenged by an ex-wife or the biological children of a deceased owner. In most instances, right of survivorship provides an indefensible method of automatic transfer of property ownership in a way that avoids probate – right of survivorship even takes precedence over the terms of a decedent’s will. However, it can be challenged in certain instances. 

How to Contest Right of Survivorship 

If you plan on contesting right of survivorship, be prepared for a lengthy, difficult – and costly – legal fight. Your ability to win your case depends largely upon the situation and any extenuating circumstances under which the joint tenancy was created. 

For example, you’ll likely have to prove to the court that the joint tenancy was formed under duress or a similar circumstance. Here are four conditions that may help you win your case if you attempt to contest right of survivorship: 

  1. Influence. A relative, spouse, or business partner was pressured to deed property as a joint tenancy against their wishes. You’ll have to prove that one party exerted undue influence over another when the joint tenancy was created to potentially win your case. 
  2. Fraudulence or deception. One party enters into a joint tenancy without full understanding or improper knowledge of how the joint tenancy arrangement works, especially as it pertains to property ownership and transfer of title upon death. 
  3. Incapacitation. A joint owner was not of sound mind and unable to make or comprehend important decisions regarding the property. 
  4. Errors in documentation. Legal documentation used to establish the joint tenancy wasn’t properly completed, or it was not filed correctly with the county recorder’s office. Mistakes in the documentation or deed to the property also could create legal ambiguity that could be used as grounds for contesting the joint tenancy. 

The laws regarding joint tenancy and right of survivorship can vary by legal jurisdiction and by the circumstances under which you choose to contest the transfer of title. You’ll likely become quite familiar with the furnishings in your lawyer’s office if you decide to contest a joint tenancy with right of survivorship. 

Closing Thoughts 

One of main reasons why people deed property as joint tenants is so that they know where their piece of the property goes when they die. Right of survivorship ensures swift and irrefutable transfer of title to the surviving owner. 

However, a situation may arise that leads you to challenge the right of survivorship. You’ll want to engage the services of an attorney who specializes in real property law and pore over the details of your case before filing suit to try and gauge the likelihood of success. 

This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.

Realized does not provide tax or legal advice. This material is not a substitute for seeking the advice of a qualified professional for your individual situation.

Download The Guide To Tenants-In-Common

The Investor's Guidebook to TIC's
Download eBook


The Investor's Guidebook to TIC's

Download The Guide To Tenants-In-Common

See if Tenants-In-Common Investments are right for you.

By providing your email and phone number, you are opting to receive communications from Realized. If you receive a text message and choose to stop receiving further messages, reply STOP to immediately unsubscribe. Msg & Data rates may apply. To manage receiving emails from Realized visit the Manage Preferences link in any email received.