What is community property with right of survivorship?
Last updated September 1, 2026
Community property with right of survivorship is a way for a married couple to hold title to a California home. When the first spouse dies, the home passes to the survivor automatically, with no probate. And because it is community property, both halves of the home can get a stepped-up basis for income tax. It combines the best feature of joint tenancy with the best feature of community property in one vesting.
Near the end of every escrow, someone asks you a question that sounds like a formality: how do you want to hold title? Most buyers answer in ten seconds. That answer quietly decides what happens to the home at a death, at a divorce, and at the tax return after a sale. Escrow officers and agents are barred from advising you on it, because it is legal advice. So here is the plain-English map to take into the conversation with your attorney.
What are the ways to hold title in California?
Title vesting is how your ownership is written on the deed. For a home here, the common choices look like this.
One person owns it alone. A married person can hold a home as separate property, and the spouse is typically asked to sign a deed confirming that. What happens at death depends on a will, a trust, or probate.
Two or more people own equal shares with a right of survivorship. When one dies, the survivor takes the whole property automatically, outside probate. Available to anyone, married or not. It is the classic vesting for unmarried partners and for parents holding title with a child.
Two or more people own shares that can be unequal, with no survivorship. When one owner dies, their share goes to their heirs, through their estate. Common for friends buying together and for inherited fractional interests.
The default character of what spouses acquire during marriage in California. Each spouse can leave their half by will, so plain community property vesting does not automatically pass the home to the survivor. It can end up in probate.
Community property plus an automatic pass to the surviving spouse. Created by Civil Code section 682.1 for instruments signed on or after July 1, 2001. The deed must say the words expressly. Silence does not create it.
Technically not a vesting of your names, because the trustee holds title. The trust says who gets what, avoids probate for everything the trust holds, and can preserve community property character inside it. This is what most estate attorneys build for homeowners at our local price points.
How is it different from joint tenancy?
This is the comparison that matters, because for decades married couples in California were vested as joint tenants by habit, and many still are.
At death, the two look identical on the surface. Survivor takes all, no probate, some recording paperwork to clear title. The difference is invisible until the tax return after a sale. It is the basis.
When a spouse dies, federal law resets the cost basis of inherited property to its value on the date of death. For community property, Internal Revenue Code section 1014(b)(6) can reset both halves, the survivor's half included. For joint tenancy property, the reset may reach only the deceased spouse's half. We walk through the arithmetic, with a worked example, in how the step up in basis works when a spouse dies.
The short version: on a long-held home that has appreciated the way homes here appreciate, the difference between a full reset and a half reset can be hundreds of thousands of dollars of taxable gain. Same house, same couple, different words on a deed signed decades earlier.
That is why community property with right of survivorship exists. The Legislature created it in 2001 so married couples could get the survivorship convenience of joint tenancy without giving up community property's tax treatment. Couples who were vested as joint tenants before 2001, or who defaulted into it since, can generally re-deed. More on that below.
This is not legal or tax advice. Whether a specific home gets the full basis reset depends on facts, documents, and dates, and a deed is a legal instrument. Use an estate planning attorney and a CPA. This page exists so you know which questions to ask them.
What happens when one spouse dies?
With community property with right of survivorship, the home passes to the surviving spouse without administration. That is the statute's own phrase. It means no probate for this asset, no court timeline, and no executor needed to transfer it.
There is still paperwork. The survivor records a document with the county, commonly an affidavit with a certified copy of the death certificate, to take the deceased spouse off title. Title companies handle this routinely, and it is far easier done before a sale is pending than during one.
Then come the money steps that surviving spouses skip at real cost: a date-of-death appraisal to document the new basis, and a talk with a CPA about the two-year window for the larger capital gains exclusion. Both are covered in selling after a spouse dies.
What happens at divorce?
Survivorship stops mattering and community property rules take over. In a California divorce, property acquired during the marriage is generally community property regardless of the label on the deed, and the court divides it accordingly. Vesting chose your death outcome. Divorce runs on family law.
One practical note: like joint tenancy, the right of survivorship can be severed, so do not assume the automatic transfer is still in place after a separation. If a divorce is in motion, title questions belong with your family law attorney immediately, and the house questions, who stays, who sells, what it nets, are the subject of selling a house during a divorce in California.
What happens when you sell?
While both spouses are alive, nothing about this vesting changes a sale. Both spouses sign the listing, the contract, and the deed. Escrow proceeds like any other sale.
After a death, the vesting does its work. The survivor clears title with the recorded affidavit, sells as the sole owner, and computes gain from the stepped-up basis. The vesting decision made at some long-ago closing quietly decides the size of the tax bill at this one.
Should we just use a living trust instead?
For many couples, yes, and this is worth hearing from agents who sell homes at Conejo Valley and west San Fernando Valley prices. Survivorship vesting solves one asset at the first death. A trust plans the whole estate at both deaths.
At the second death, a home held as community property with right of survivorship belongs entirely to the survivor, and it passes through whatever plan the survivor has. Without one, that can mean probate. A revocable living trust avoids probate at both deaths, names who inherits, and can hold the home as community property so the basis treatment is preserved. Many attorneys treat the trust as the main tool and survivorship vesting as the simpler fallback. Which fits your family is exactly the conversation to have with an estate planning attorney, and it is worth having before escrow closes, because the vesting question is coming either way.
What about unmarried partners buying together?
Community property vesting is for married couples and registered domestic partners, so unmarried co-buyers choose between the other doors. The choice still matters just as much.
- Joint tenancy gives you survivorship. If one partner dies, the other takes the whole home automatically. Shares must be equal, which does not always match unequal down payments.
- Tenancy in common allows unequal shares, and each owner's share passes to their own heirs. Without a will, that can mean co-owning the house with your late partner's family.
- A written co-ownership agreement is the piece most unmarried buyers skip. Who pays what, what happens at a breakup, who can force a sale. Put it on paper while everyone is still getting along.
If you are heading into a purchase, the vesting conversation lands in the same week as the money conversation. Get both ready before escrow opens.
How do you pick or change your vesting?
At purchase, escrow asks how you want to hold title, and your answer goes on the deed. Decide it deliberately. If your estate plan is not built yet, you can close in one vesting and re-deed later.
Changing later is normal and usually simple. A new deed is prepared, signed, and recorded. Married couples re-deed into a trust or into community property with right of survivorship all the time, and transfers between spouses are generally excluded from property tax reassessment under Revenue and Taxation Code section 63, so the change itself should not touch your Prop 13 assessed value. Have the attorney confirm that for your specific transfer before recording anything.
One honest limitation. We are real estate agents. We see the consequences of vesting choices at the closing table, which is why we wrote this page, and we are the wrong people to choose yours. The law here is stable, section 682.1 has been on the books since 2001, and the application is personal. An hour of estate planning advice costs a rounding error against what the wrong deed can cost at the first death.
This is not legal or tax advice. Vesting, basis, severance, and reassessment all turn on facts and documents we cannot see, and registered domestic partners have their own related rules. Use an estate planning attorney and a CPA before you sign or change a deed.
What is community property with right of survivorship?
It is a California way for married couples to hold title, created by Civil Code section 682.1 for deeds signed on or after July 1, 2001. The deed must expressly declare it. At the first spouse's death the home passes to the survivor automatically, without probate, and because the property is community property, both halves can receive a stepped-up basis for income tax. Confirm your own vesting with an attorney.
Is community property with right of survivorship better than joint tenancy for a married couple?
For many California couples the tax answer favors community property with right of survivorship. Both vestings pass the home to the survivor without probate. The difference is basis at the first death. Community property can get a new basis on both halves under federal law, and joint tenancy property may get it on only the deceased spouse's half. Which applies to you turns on facts a CPA or attorney should confirm.
Does community property with right of survivorship avoid probate?
For that property, at the first death, yes. Civil Code section 682.1 says the property passes to the surviving spouse without administration. The survivor records paperwork, commonly an affidavit with a death certificate, to clear the deceased spouse from title. It does nothing for the rest of the estate, and at the second death the home generally goes through whatever plan or probate the survivor has, which is why many couples use a living trust instead.
Can we change how we hold title after closing?
Yes. Vesting is changed by recording a new deed, and married couples do it often, usually into a trust or into community property with right of survivorship. Transfers between spouses are generally excluded from property tax reassessment under Revenue and Taxation Code section 63. Deeds have legal and tax consequences, so have an estate planning attorney prepare the change rather than downloading a form.
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Summary points
- Community property with right of survivorship is a California vesting for married couples, created by Civil Code section 682.1 for deeds signed on or after July 1, 2001, and the deed must declare it expressly.
- At the first spouse's death the home passes to the survivor automatically, without probate, the same convenience joint tenancy offers.
- Because it is community property, both halves can get a stepped-up basis at the first death under Internal Revenue Code section 1014(b)(6). Joint tenancy may reset only the deceased spouse's half.
- On an appreciated home, the gap between a full basis reset and a half reset can be hundreds of thousands of dollars of taxable gain.
- At divorce, community property rules control regardless of vesting, and survivorship rights can be severed.
- A living trust plans the whole estate at both deaths and can preserve community property treatment, which is why many attorneys prefer it over any bare vesting.
- Vesting can be changed with a new deed, and transfers between spouses are generally excluded from reassessment under Revenue and Taxation Code section 63. Use an attorney, because the ten-second answer at escrow has six-figure consequences.