Brian MeinertRealtor · WBG
How you take title decides what happens if you pass away, get sued, or want to sell. Here is the side-by-side, then plain descriptions of each option.
Tap the options you want to compare. Swipe sideways to see more.
| Community Property | Joint Tenancy | Tenancy in Common | Partnership Holding Title | Title Holding Trust | Community Property with Right of Survivorship | Registered Domestic Partners | |
|---|---|---|---|---|---|---|---|
| Parties | Married spouses or domestic partners | Any number of persons (can be married spouses or registered domestic partners) | Any number of persons (can be married spouses or registered domestic partners) | Only partners (any number) | Individuals, groups of persons, partnership or corporations, a living trust | Married spouses or domestic partners. | Only partners that are registered with the California Secretary of State's domestic Partners Registry. |
| Division of Interests | Ownership and managerial interests are equal (except control of business is solely with managing spouse) | Ownership interest must be equal | Ownership can be divided into any number of interests equal or unequal | Ownership interest is in relation to interest in partnership | Ownership is a personal property interest and can be divided into any number of interests | Ownership and managerial interests are equal | Ownership and managerial interests are equal (except control of business is solely with managing domestic partner) |
| Title | Title is in the "community." Each interest in separate but management is unified | Sale or encumbrance by joint tenant severs joint tenancy | Each co-owner has a separate legal title to his/her undivided interest | Title is in the "partnership" | Legal title is held by the trustee; beneficiary has equitable title | Title is in the "community," management is unified | Title is in the "community." Each interest in separate but management is unified |
| Possession | Both co-owners have equal management and control | Equal right of possession. | Equal right of possession. | Equal right of possession but only for partnership purposes | Right of possession as specified in the trust provisions | Both co-owners have equal management and control | Both co-owners have equal management and control |
| Conveyance | Personal property and real property requires written consent of other spouse; and separate interest cannot be conveyed except upon death | Conveyance by one co-owner without the others breaks the joint tenancy | Each co-owner's interest may be conveyed separately by its owner | Any authorized partner may convey part or entire interest in partnership property for partnership purposes. Purchaser acquires interest that partnership owned | Designated parties within the trust agreement authorize the trustee to convey property. Also, a beneficiary's interest in the trust may be transferred | Right of survivorship may be terminated pursuant to the same procedures by which a joint tenancy may be severed | Personal property and real property requires written consent of other spouse; and separate interest cannot be conveyed except upon death |
| Purchaser's Status | Purchaser can only acquire whole title of community; cannot acquire a part of it | Purchaser will become a tenant in common with the other co-owners in the property as to the purchaser's interest. Other owners may remain joint tenants | Purchaser will become a tenant in common with the other co-owners in the property | Purchaser can acquire part of entire interest in partnership property. If in part, the purchaser will become a tenant in common with the partnership | A purchaser may obtain a beneficiary's interest by assignment or may obtain legal and equitable title from the trust | Purchaser can only acquire whole title of community; cannot acquire a part of it | Purchaser can only acquire whole title of community; cannot acquire a part of it |
| Death | On co-owner's death, 1/2 belongs to survivor in severalty. 1/2 goes by will to descendant's devisee or by succession to survivor | On co-owner's death, his/her interest ends and cannot be disposed of by will. Survivor owns the property by survivorship | On co-owner's death, his/her interest passes by will to devisee or heirs. No survivorship rights | On partner's death, partnership interest passes to the survivor pending liquidation of the partnership. Share of deceased then goes to their estate | Successor beneficiaries may be named in the trust agreement, eliminating the need for probate | A deceased spouse's interest automatically transfers to the surviving spouse without probate, following the same rules as joint tenancy | On co-owner's death 1/2 belongs to survivor in severalty. 1/2 goes by will to descendant's devisee or by succession to survivor |
| Successor's Status | If passing by will, tenancy in common between devisee and survivor results | Last survivor owns entire interest. | Devisees or heirs become tenants in common. | Heirs or devisee have rights in partnership interest but not in specific property. | Trust agreement usually provides for distribution upon death of the settlor. | Survivor owns entire interest. | If passing by will, tenancy in common between devisee and survivor results |
| Creditor's Rights | Property of community is liable for debts of either spouse, which are made before or after marriage. Whole property may be sold on execution sale to satisfy creditor | Co-owner's interest may be sold on execution sale to satisfy his/her creditor. Joint tenancy is broken, creditor becomes a tenant in common | Co-owner's interest may be sold on execution sale to satisfy his/her creditor. Creditor becomes a tenant in common | Partner's interest may be sold separately by "Charging Order" by his/her personal creditor, or his/her share of profits may be obtained by a personal creditor. Whole property may be sold on execution sale to satisfy partnership creditor | A creditor may seek an order for execution sale of the beneficial interest or may seek an order that the trust estate be liquidated and the proceeds distributed | Property of community is liable for debts of either which are made before or after marriage; whole property may be sold on execution sale to satisfy creditor | Property of community is liable for debts of either partner, which are made before or after registration as domestic partners. Whole property may be sold on execution sale to satisfy creditor |
| Presumption | Strong presumption that property acquired by married spouses is community | Must be expressly stated | Favored in doubtful cases except married spouses | Arise only by virtue of partnership status in property placed in partnership | A trust is expressly created by an executed trust agreement | Must be expressly stated | Must be expressly stated |
Registered Domestic Partnership status is not limited to same sex couples.
Sole ownership may be described as ownership by an individual or other entity capable of acquiring title. Examples of common vesting cases of sole ownership are:
A form of vesting title to property owned together by married persons or by domestic partners. Community property is distinguished from separate property, which is property acquired before marriage or before a domestic partnership by separate gift or bequest, after legal separation, or which is agreed in writing to be owned by one spouse or domestic partner.
A form of vesting title to property owned together by spouses or by domestic partners. This form of holding title shares many of the characteristics of community property but adds the benefit of the right of survivorship similar to title held in joint tenancy. There may be tax benefits for holding title in this manner. On the death of an owner, the decedent's interest ends and the survivor owns all interests in the property.
(e.g., Bruce Buyer and Barbara Buyer, husband and wife, as community property with right of survivorship, or John Buyer and Bill Buyer, husband and husband, as community property with right of survivorship. Another example for same sex couples: Sally Smith and Jane Smith, registered domestic partners, as community property with right of survivorship.)
A form of vesting title to property owned by two or more persons, who may or may not be married or domestic partners, in equal interests, subject to the right of survivorship in the surviving joint tenant(s). Title must have been acquired at the same time, by the same conveyance, and the document must expressly declare the intention to create a joint tenancy estate. When a joint tenant dies, title to the property is automatically conveyed by operation of law to the surviving joint tenant(s). Therefore, joint tenancy property is not subject to disposition by will.
(e.g., Bruce Buyer, a married man and George Buyer, a single man, as joint tenants.)
A form of vesting title to property owned by any two or more individuals in undivided fractional interests. These fractional interests may be unequal in quantity or duration and may arise at different times. Each tenant in common owns a share of the property, is entitled to a comparable portion of the income from the property and must bear an equivalent share of expenses. Each co-tenant may sell, lease or will to his/her heir that share of the property belonging to him/her.
(e.g., Bruce Buyer, a single man, as to an undivided ¾ interest and Penny Purchaser, a single woman, as to an undivided ¼ interest.)
In cases of corporate, partnership, LLC or trust ownership, required documents may include corporate articles and bylaws, partnership agreements, LLC operating agreements and trust agreements and/or certificates.
How title is vested has important legal consequences and tax consequences. The tax consequences may be different for same sex legally related couples. You may wish to consult an attorney or tax advisor to determine the most advantageous form of ownership for your particular situation.
Registered domestic partnership status is not limited to same sex couples. Source: CLTA.org