Author: Brenton McWilliams
What is an Alabama survivorship Deed?
In Alabama, survivorship deeds are sometimes used for ownership among multiple property owners. Following the death of one of the owners, a survivorship deed passes ownership on to the surviving owner automatically, by operation of law, without the need for probate. The property is owned by the multiple owners as joint tenants with right of survivorship.
Without survivorship, the default ownership among multiple owners is ownership as “tenants in common.” Each owner’s interest in the property will pass as part of their probate estate on their death.
Ownership with right of survivorship is common with married couples. For most couples, the right of survivorship is a good setup that allows the house to automatically pass to the surviving spouse without the need for probate. However, blended families or couples with separate children should pay attention to whether they own their property with a right of survivorship. Survivorship deeds between spouses with children from a prior marriage, can and often do, result in one of the spouse’s children being completely disinherited.
For example, Jane and John Doe are each on their second marriage. They both have children from prior marriages. Both of them are financially independent. After their marriage, they retire and purchase a condo together at the beach in Alabama. Both of them contribute the entire equity in their previous homes to purchase the condo. Jane creates a will that leaves all of her property to her children. John creates a will that leaves all of his property to his children. Jane and John own the condo as joint tenants with right of survivorship.
Jane and John live together in the condo. After 20 years, Jane and John have spent the bulk of their retirement savings. The equity in the condo is their largest asset and what they plant to leave to their children. On Jane’s death, the right of survivorship in the deed controls and the entire ownership in the property passes to John. John is the surviving spouse and now owns 100% of the condo. On John’s death, his entire estate, including the full interest in the condo pass to his children under his will. Jane’s children receive nothing. (Note that this would also be the case if Jane and John did not create wills).
Variations of Survivorship Deeds in Alabama
There are at least two variations of survivorship deeds in Alabama including a joint tenancy with right of survivorship and a tenancy in common with right of survivorship. The joint tenancy with right of survivorship is created by language in the deed expressing a clear intent for ownership to be held with a right of by survivorship between the owners. For example, the joint tenancy with right of survivorship language may read: “Grantor grants to Jane and John Do as joint tenants with right of survivorship the following described property.” In contrast to the tenancy in common with right of survivorship, the right of survivorship may be severed or destroyed by unilateral action on the part of one of the co-owners.
The tenancy in common with right of survivorship may create a right of survivorship that is indestructible without the consent of all co-owners involved. Alabama courts have characterized the tenancy in common with right of survivorship “as creating concurrent life estates with cross-contingent remainders in fee; or a tenancy in common for life with a contingent remainder in favor of the survivor.” In a life estate remainder ownership scheme, the full interest cannot be conveyed without action by both the life tenant and remainderman. The language for a tenancy in common with right of survivorship may read: “Grantor grants to Jane and John Do as tenants in common with equal interests during their concurrent lives with a cross-contingent remainder to the survivor in fee simple.”
How to Create or Terminate a Right of Survivorship
A right of survivorship may be created by a deed using the appropriate granting language to specify that the ownership includes a right of survivorship among the owners. The right of survivorship can be terminated by deed. The consent required depends on whether the right of survivorship is destructible. There are also statutes that provide for specific circumstances where a right of survivorship will automatically terminate.
Does your deed have right of survivorship?
You can determine whether your ownership is by survivorship by reviewing your source deed to the property to see if the granting clause includes either of the types of survivorship language above. Alabama Code § 35-4-7 states that “in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument.”