South Carolina Real Estate Law Blog

Published by Lonon Law Firm

What is a “right of survivorship” interest in real estate?

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In South Carolina there are three forms of “cotenancies” or ways in which real property can be owned by two or more persons, a tenancy in common, joint tenancy with a right of survivorship and a tenancy in common with a right of survivorship.

Tenancy in Common. Most deeds to two or more people are drafted to create a “tenancy in common.” Under a tenancy in common form of ownership, each owner has an undivided interest in the subject property which passes to that person’s respective heirs (or devisees if the owner dies with a valid will).  A tenancy in common is the default cotenancy in South Carolina and is included in a decedent’s probate estate.

Joint Tenancy with a Right of Survivorship. Certain language included in a deed can create a “joint tenancy with a right of survivorship” or JTROS.  If a joint tenant with a right of survivorship passes, his or her interest is immediately extinguished and ownership of the property rests with the remaining joint tenant(s).  However, if the property is owned by more than two persons and one of the joint tenants passes, the remaining own the property as tenants in common since the original “unity” of ownership is then broken.  The unity is also broken if one of the joint tenants conveys his or her interest to another or the property is divided by agreement or partition. Also, by statute, a joint tenant who effects a severance of the tenancy by murdering his or her joint tenant forfeits his or her right of survivorship.

Tenancy in Common with a Right of Survivorship.  The least common form of ownership is a tenancy in common with a right of survivorship or TICROS.  It differs from the JTROS in that the survivorship interest of the remaining co-tenants is a “vested future interest” and is indestructable. Therefore, even if a “unity” is broken by one or more cotenants, the remaining cotenants interest in obtaining ownership of that interest passes with the conveyance.  A TICROS is especially helpful where more than two people own property jointly and they would like to eliminate the ability for one cotenant to unilaterally destroy the survivorship interest of those remaining.

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