joint tenancy vs community property

2021-12-02

Joint Tenancy vs Community Property with the Right of Survivorship in Arizona

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Joint tenancy vs. community property—what’s the difference? Both are common ways for two people to hold a property title together equally in Arizona. These ownership structures both involve the right of survivorship, ensuring that a surviving co-owner inherits the property upon the other’s death. 

How you own the title of a property with someone can affect how your estate is settled when you’re gone. Joint tenancy and community property with the right of survivorship are both legal ownership structures that prevent your property from going through probate court. 

The professionals at Phelps Law are here to help make settling your estate after you’re gone go as smoothly as possible. Today we’re comparing joint tenancy vs. community property with the right of survivorship to help you understand how each type of ownership structure could affect the future of your property.  

Joint Tenancy vs. Community Property

Definition

In a joint tenancy, you and your spouse, business partner, or other joint tenant own equal shares of the property. It also means that you both have equal rights to use the property during your lifetime. Joint tenancy includes the right of survivorship, meaning that when one of you passes away, full ownership will automatically transfer to the other joint tenant.

Community property with the right of survivorship is a type of title ownership for married couples only. Each spouse owns the property equally, entitling them to an equal division of the property after divorce. Like joint tenancy, community property with the right of survivorship also grants the surviving spouse full ownership of the property. Arizona is one of only five states that have community property with the right of survivorship laws. The other four states include Nevada, California, Wisconsin, and Texas.

Taxes

If you sell a property that was held in joint tenancy with the deceased person (decedent), you will have to pay a capital gains tax on the profit. However, if you held the property as community property with your spouse, then the profit is not subject to the capital gains tax. The property could also qualify for an estate tax, which one of you will have to pay when the other passes away, regardless of the type of ownership.

Pros and Cons of Joint Tenancy

Advantages

  • More than two people can hold joint tenancy.
  • Ownership automatically passes to the surviving co-owner(s).
  • The property avoids probate even if the decedent doesn’t have a will.
  • Joint tenancy does not require marriage.
  • The tenants share financial burdens like property taxes.

Disadvantages

  • The property cannot pass to someone who is not a joint tenant, even with a will.
  • Creditors may petition the court to force a sale to collect a debt from one of the owners.
  • Each joint tenant must approve any financial decisions regarding the property. 

Pros and Cons of Community Property with the Right of Survivorship

Advantages

  • Each spouse owns the property equally. It does not matter who paid for the purchase, pays the bills, or has their name on the title.
  • Community property can include real estate, vehicles, furniture, and other property you and your spouse may acquire during your marriage.
  • The transfer of property avoids probate.

Disadvantages

  • Holding property in this title requires legal marriage.
  • The property cannot pass to anyone other than the surviving spouse, even with a will.
  • Arizona does not recognize common-law marriages, so any property you acquire during what would be considered a common-law marriage in other states may not be held as community property. However, Arizona does recognize common-law marriages that had been valid in other states.

Avoid Arizona Probate with Professional Estate Planning

While there are several significant differences between joint tenancy vs. community property ownership, they both avoid probate due to the right of survivorship. The estate planning professionals at Phelps Law can help the rest of your estate avoid probate with a well-designed estate plan. We have over 40 years of experience helping Arizona residents in the Mesa, Scottsdale, Chandler, and Glendale communities with their estate plans. Call 480-892-2488 today to schedule a consultation. 

Images‌ ‌used‌ ‌under‌ ‌creative‌ ‌commons‌ ‌license‌ ‌–‌ ‌commercial‌ ‌use‌‌ ‌‌(12/2/2021).‌ Photo by Denny Müller on Unsplash
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