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Co-ownership and right of survivorship

How ownership of a property is transferred if an owner dies, and they were tenants in common or joint tenants.

Last updated 29 June 2023

What is right of survivorship?

When property ownership is shared, and an owner dies, how their share of the property is transferred is based on the co-ownership arrangement. This is called the right of survivorship.

Tenants in common

Tenants in common are 2 or more people who separately own a percentage of a property. The percentages may be unequal.

Tenants in common can bequeath their share of the property to anyone.

When a tenant in common dies, their share in the property becomes an asset of their deceased estate. There is no right of survivorship.

Their interest in the property can be:

  • transferred to a beneficiary of the estate
  • sold (or otherwise disposed of) by the legal personal representative of the estate.

A tenant in common has the right to sell, mortgage or lease their share of the property. They can do this without the agreement of the other tenants.

Example: surviving tenant in common

Anita and Noor bought a property as tenants in common. Anita took an 80% share and Noor took a 20% share in the property.

Some years later, Anita died. Anita's 80% share in the property became an asset of her deceased estate.

In her will, Anita identified her son Isaac as beneficiary of her estate. Therefore, her 80% share in the property is transferred to Isaac.

End of example

Joint tenants

Joint tenants have an equal share in the ownership of an asset.

If a joint tenant dies, the other tenant (or tenants) has a right of survivorship. The deceased tenant's interest is not an asset of their estate.

However, for capital gains tax purposes, the deceased's interest is taken to pass in equal shares to the surviving joint tenants, as if the interest is an asset of the deceased estate and the surviving joint tenants are beneficiaries.

This means if the property was the deceased’s main residence, the surviving joint tenants may be entitled to the main residence exemption for the acquired interest.

Example: surviving joint tenant

Laura and Damien bought a 2-bedroom apartment as joint tenants.

Some years later, Damien died. Damien's 50% interest in the property passed to Laura as the surviving joint tenant.

End of example