Property ownership is assigned to individuals with property titles, with their names and signatures on the legal documents. If two or more people pool resources to acquire a property, they can become its legal joint owners.
How you hold title to a property with another individual can have far-reaching effects on your family or heirs. Regardless of how good your relationships with your co-owners are, it is wise to consider putting your ownership status in a joint tenancy on paper and decide beforehand how the division of property will be in the event of a co-owner’s death. This simplifies matters for the surviving owners and protects the deceased’s interests in the property.
Learn more about tenancy in common and the rights of survivorship in South Carolina below.
Rights of Survivorship VS. Tenants In Common
People can co-own property in SC in two ways: joint tenancy with rights of survivorship and joint tenancy in common.
Does tenancy in common have right of survivorship? What happens if one owner dies? Are the co-owners allowed to sell their interests in a jointly owned real property? This section answers these questions and highlights the main differences between rights of survivorship vs. tenants in common.
Joint Tenancy with Rights of Survivorship
People enter this type of joint ownership mainly for convenience. South Carolina joint tenants with rights of survivorship automatically inherit the other share of the property if their co-owner dies. Probate is unnecessary because the deceased’s title will immediately pass on to the surviving co-tenant. The property also won’t be subject to the terms in the deceased’s will.
Given these legal implications, married couples mostly choose joint tenancy with rights of survivorship in South Carolina. It helps ensure the surviving immediate family retains ownership of their house, for example, upon a parent’s death. It also saves the surviving spouse from the financial burden of securing the title of their home under their name, going through probate, and other necessary legal procedures to gain full ownership of their home.
To establish the rights of survivorship in South Carolina, co-owners should add the following words after their names in the deed: “as joint tenants with rights of survivorship, and not as tenants in common.”
People who aren’t married or blood relatives are free to co-own properties with rights of survivorship. However, it is often risky as friendships and business partnerships can change over time. If relationships turn sour, it might be very difficult to split a property in a manner that will satisfy all owners. This is why, in the eyes of modern common law, South Carolina joint tenancy with right of survivorship is less favorable compared to the second form of co-ownership
Tenancy in Common
Joint tenancy in common abolishes the “indestructible right of survivorship” in a jointly owned property because it establishes a clear separation between co-owners. This is advantageous for people who may have contributed varying amounts of money to buy a property.
Unlike joint tenancy with rights of survivorship, where co-owners are viewed equal, tenancy in common recognizes that one person can own a bigger chunk of property over another. Co-owners can set varying ownership percentages according to the amount they contributed in acquiring a property. For example, one can own 51% of a property while the other holds 49%.
What happens if a co-tenant of a tenancy in common dies? The deceased’s interest in the property will pass through their estate and follow the terms of a last will and testament, where they may name an heir. But if the deceased didn’t leave a will or didn’t specify who will inherit their share of the property, South Carolina’s intestacy laws will determine the new owner.
Tenancy in common is the default form of joint tenancy. The deed will show the co-owners’ names followed by words of inheritance or succession only. Adding the words “with rights of survivorship” to the deed makes it otherwise. Married couples, siblings, relatives, business partners, etc., who want to acknowledge different ownership percentages must double-check the terminologies before signing a deed to ensure tenancy in common.
Here’s a cheat-sheet comparison for South Carolina joint tenants with rights of survivorship vs. tenants in common:
| Joint Tenancy with Rights of Survivorship | Tenancy in Common |
| All parties own the real property equally. | Each party owns a portion of the real property, and their shares are unequal. |
| If one party dies, their interest automatically transfers to the surviving party/parties. | If one party dies, their interest transfers to their heir as stated in their will or according to intestacy laws. |
| Transfer of interest in the property doesn’t pass through probate. | Transfer of interest to the heir passes through probate and intestacy procedures. |
| The property remains intact upon one party’s death. | The property becomes subject to partition upon one party’s death. |
| All parties must be in agreement before they can sell the property. | A party can sell their share whenever and to whomever they choose. They don’t need to get permission from the other parties. |
Does Tenancy In Common Have The Right Of Survivorship?
Technically, tenants in common do not have rights of survivorship. However, South Carolina recognizes a lesser-known third form of joint ownership: tenancy in common with rights of survivorship.
As the name suggests, this alternative arrangement combines elements of both forms of ownership into a deed. It became known in recent years thanks to the landmark case of Smith v Cutler in 2005, where the Supreme Court of South Carolina ruled tenancy in common with rights of survivorship as legal.
But why would SC joint tenants with right of survivorship want tenancy in common if they are after the convenience and automatic transfer of ownership to a surviving party? It’s because joint tenancy with right of survivorship can be severed by one party through death, divorce, or sale or conveyance of a party’s interest. The property in question is often divided once the joint tenancy is broken.
However, with tenancy in common with an indestructible right of survivorship, the joint tenancy cannot be unilaterally severed (meaning the decisions of one party cannot sever the joint ownership). Furthermore, the property in question cannot be partitioned.
This form of ownership is the closest to “tenancy by the entirety,” which is recognized in other states but not in South Carolina.
If you have more questions about South Carolina joint tenancy with right of survivorship, contact Wiles Law. We are a full-service tax, estate, and business planning law firm specializing in wills and trusts, probate, wealth transfer planning, business succession planning, and other legal services for families and individuals.
Let our experienced attorneys help you manage your assets and protect your loved ones’ interests in the future. Contact Wiles Law today.