Sole and Co-Ownership
Title to property in California may be held by individuals in Sole Ownership or in Co-Ownership. Co-Ownership of real property is when the title is held by two or more persons. Here are a few quick summaries of the more common examples of sole and co-ownership.
1. A single man/woman: a person who is neither legally married nor a Registered Domestic Partner, e.g. Jane Smith, a single woman
2. An unmarried man/woman: a person who is legally divorced, e.g. John Doe, an unmarried man
3. A married man/married woman/Registered Domestic Partner claiming the property as his/her separate property: a person who is married or a Registered Domestic Partner, e.g. Jim Smith, a married man, as his sole and separate property.
When a person who is married or a Registered Domestic Partner wishes to acquire title in his/her name alone, the other spouse or Registered Domestic Partner must consent to this by quitclaim deed or other recordable written instrument. The other spouse or Registered Domestic Partner thereby relinquishes community interest in the property.
4. Community property is defined by the California Family Code as a property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either, e.g. John Doe and Mary Doe, Husband and Wife
On January 1, 2005, most community property rules became applicable to Registered Domestic Partners. Real property conveyed to a married man, married woman, or Registered Domestic Partner will be presumed to be community property unless otherwise recorded. Under community property rules, both spouses or Registered Domestic Partners have the right to dispose of one half of the community property by will. If one of the spouses or Registered Domestic Partners dies without a will, the interest belonging to the deceased may pass to the survivor without the need for administration in Probate. If one spouse or Registered Domestic Partner exercises his/her right to dispose of his/her one half of the community property, that interest will be subject to administration by a Probate Court.
5. The California Civil Code defines Joint Tenancy as: “(a) [a] joint interest is owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy…” e.g. John Doe and Mary Doe, Husband and Wife as Joint Tenants
The chief characteristic of Joint Tenancy property is the right of survivorship. When one joint tenant dies the title to the property immediately vests in the surviving joint tenant(s). Joint Tenancy property is not subject to disposition by will.
6. Tenancy in Common, e.g. John Doe, a single man, as to an undivided ¾ interest, and George Smith, a single man, as to an undivided ¼ interest, as tenants in common.
Under tenancy in common the co-owners own undivided interests which need not be equal in size. There is no right of survivorship, thus upon death of a tenant in common the interest vests in the heirs or devisees of the deceased.
7. Community Property with Rights of Survivorship (effective July 1, 2001), e.g. John Doe and Mary Doe, Husband and Wife, as community property with the right of survivorship.
Spouses may add the right of survivorship aspect of joint tenancy to community property. Registered Domestic Partners may take advantage of this mechanism as well. Upon death of a spouse or Registered Domestic Partner, the title will pass to the survivor automatically. Specific language in
the deed is required.
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