Alabama’s joint property ownership laws do not work the way most people assume. The state defaults co-owned real estate to tenancy in common, recognizes joint tenancy with right of survivorship only when the deed expressly creates it, and does not recognize tenancy by the entirety at all. If you want the surviving co-owner to automatically take the whole property when you die, the deed has to say so in plain terms. Marriage alone does nothing to change the default.
Tenancy in Common Is the Default
When two or more people take title to Alabama property and the deed says nothing about survivorship, they are tenants in common. Each co-owner holds a separate, transferable interest that can be sold, gifted, or willed independently, and the shares don’t have to be equal. One person can own 70% and another 30% depending on what the deed or purchase agreement specifies.
The consequence shows up at death. A tenant in common’s share does not pass to the other co-owners. It becomes part of their estate and goes to whoever is named in their will, or to their heirs under Alabama’s intestacy laws if there is no will. The surviving co-owner can end up sharing the property with the deceased’s children, spouse, or other relatives, sometimes people they have never met.
A deed that simply conveys property “to John Smith and Jane Doe” with no further language creates a tenancy in common. Many people assume co-ownership automatically means the survivor gets everything. In Alabama, that assumption leads to probate proceedings and unwanted co-owners.
Joint Tenancy With Right of Survivorship
Alabama allows joint tenancy with right of survivorship, but only when the deed expressly creates it. Under Alabama Code Section 35-4-7, a joint tenant’s interest passes to the surviving joint tenants only if the deed states “that such tenancy is with right of survivorship or other words used therein showing such intention.”1Alabama Legislature. Alabama Code 35-4-7 – Survivorship Between Joint Tenants Without that language, the deceased tenant’s share descends through their estate as if they were a tenant in common.
This is where Alabama diverges from many other states. Elsewhere, joint tenancy often carries automatic survivorship. Alabama flips the presumption. The deed must contain phrases like “as joint tenants with right of survivorship” or equivalent language showing that intent. The statute also covers the situation where an owner conveys to themselves and one or more other people: the survivorship intent still has to appear in the deed.1Alabama Legislature. Alabama Code 35-4-7 – Survivorship Between Joint Tenants
What Survivorship Actually Does
When the deed contains proper survivorship language, the surviving joint tenant automatically takes full ownership when the other tenant dies. The transfer happens outside of probate, saving time and court costs. The deceased tenant’s heirs and beneficiaries have no claim regardless of what a will says, because the survivorship right overrides the will.
That is the upside for couples and business partners who want a clean, automatic transfer. It is also the tradeoff: a joint tenant cannot leave their share to someone else through estate planning. If you want your children to inherit your half of a property rather than your co-owner, joint tenancy with survivorship is the wrong tool.
Restrictions During Life
Joint tenants each hold an equal, undivided interest in the whole property. Selling or mortgaging the property generally requires all joint tenants to agree. A lien filed against one joint tenant’s interest can cloud the title for everyone. And any joint tenant can sever the tenancy by conveying their interest to a third party, which destroys the survivorship right and converts the arrangement into a tenancy in common between the remaining owner and the new party.
No Tenancy by the Entirety in Alabama
Tenancy by the entirety exists in roughly half of U.S. states, but Alabama is not one of them. Married couples who take title together are treated as tenants in common unless the deed expressly creates a joint tenancy with right of survivorship. There is no special form of ownership that attaches to spouses because they are married.
This matters most for creditor protection. In states that recognize tenancy by the entirety, a judgment creditor of only one spouse generally cannot force a sale of the couple’s jointly owned home. Alabama provides no such shield. A creditor holding a judgment against one spouse can potentially reach that spouse’s interest in jointly held property, including the family home, subject to the limited homestead exemption discussed below.
Married couples in Alabama who want survivorship have to take the same step as any other co-owners: include express survivorship language in the deed.
Severing a Joint Tenancy and Partition
Any joint tenant can sever the joint tenancy by conveying their interest. The conveyance destroys the unity of title required for joint tenancy and converts the arrangement into a tenancy in common. The severing tenant does not need consent from the other tenants or even their knowledge, though recording the conveyance in the county land records is necessary to put the world on notice.
When co-owners cannot agree on what to do with shared property, any co-owner can file a partition action in circuit court. Alabama’s partition statute gives the circuit court jurisdiction to divide or sell property held by joint owners or tenants in common.2Alabama Legislature. Alabama Code 35-6-20 – Jurisdiction of Circuit Court to Divide or Sell for Partition The court can physically divide the property when that is practical, or order a sale and split the proceeds when a fair division isn’t possible.
Partition actions are not cheap. Court costs, attorney fees, appraisal fees, and commissioner fees add up. But they are sometimes the only realistic exit from an impasse, particularly when one person inherited their interest and has no relationship with the other co-owners.
What Happens If Co-Owners Die at the Same Time
Alabama’s Uniform Simultaneous Death Act addresses jointly owned property when co-owners die at or near the same time and there is no way to determine who died first. Under Section 43-7-4, when two joint tenants die and there is no sufficient evidence they died at different times, the property is distributed as if each had survived the other, so half goes to each estate.3Alabama Legislature. Alabama Code 43-7-4 – Joint Tenants or Tenants by the Entirety
Alabama adopted the original version of the Act, which does not include the 120-hour survival requirement used in some other states. The Alabama rule applies only when there is genuinely no evidence of who died first. If medical or investigative evidence establishes even a brief difference in time of death, the normal survivorship rules apply. Section 43-7-7 also allows co-owners to displace these default rules through a will, trust, deed, or other governing instrument.
Creditor Claims Against Jointly Owned Property
Because Alabama does not recognize tenancy by the entirety, jointly owned property here gets less creditor protection than in states that do. A judgment creditor of one co-owner can place a lien on that person’s interest. The lien does not give the creditor ownership, but it clouds the title and has to be satisfied before the property can be sold with clear title.
In a tenancy in common, a creditor can sometimes force a sale of the debtor’s interest through a partition action, which effectively drags the non-debtor co-owner into a sale they did not want. In a joint tenancy with right of survivorship, the creditor’s lien attaches to the debtor’s interest during the debtor’s lifetime. If the debtor dies first, the survivorship right may extinguish the lien because the debtor’s interest ceases to exist. If the debtor survives the other tenant, the full property becomes available to satisfy the debt.
Alabama provides a homestead exemption that shields up to $15,000 in value on up to 160 acres from execution during the owner’s lifetime. When a married couple jointly owns a homestead, each spouse can separately claim the exemption.4Alabama Legislature. Alabama Code 6-10-2 – Homestead Exemption Given modern property values, $15,000 is minimal protection, and Alabama homeowners with real debt exposure should not rely on the homestead exemption as a serious asset protection strategy.
Tax Consequences of Adding a Co-Owner
Putting someone on your deed is generally treated as a gift for federal tax purposes. If you add a non-spouse co-owner to the title of a property worth $400,000, you have effectively given them a $200,000 interest. The annual gift tax exclusion for 2026 is $19,000 per recipient, and a gift above that requires filing IRS Form 709.5Internal Revenue Service. Gifts and Inheritances Filing the return does not necessarily mean you owe tax. The excess counts against your lifetime estate and gift tax exemption, which is $15 million for 2026.6Internal Revenue Service. What’s New – Estate and Gift Tax Transfers between spouses who are both U.S. citizens are generally exempt from gift tax under the unlimited marital deduction.
Step-Up in Basis at Death
When a joint tenant dies, the surviving owner’s cost basis in the property may be adjusted, which changes the capital gains calculation if the property is later sold. The rules depend on the relationship between the co-owners.
For married couples who are the only joint tenants, the surviving spouse receives a step-up in basis on the deceased spouse’s half. The survivor’s basis becomes the cost of their own half, adjusted for depreciation, plus the fair market value of the inherited half at the date of death.7Internal Revenue Service. Publication 551 – Basis of Assets
For non-spousal joint tenants, the portion included in the deceased tenant’s estate is determined by how much each tenant originally contributed to the purchase price, and only that portion receives the step-up. If one person paid the entire purchase price, the full property value is included in their estate at death and the surviving tenant gets a full step-up. If both contributed equally, only half is stepped up.7Internal Revenue Service. Publication 551 – Basis of Assets The surviving tenant bears the burden of proving what was included in the decedent’s estate, so documenting contribution history matters.
Checking and Fixing Your Deed
If you already own property jointly and aren’t sure what your deed says, pull a copy from your county probate office. Alabama records deeds through the probate court in each county, and recording fees are modest, typically under $20 for a basic document, plus a deed tax of $1 per $1,000 of property value conveyed.
If survivorship is your goal, the deed must say so. Standard language like “as joint tenants with right of survivorship and not as tenants in common” leaves no room for ambiguity. If your current deed lacks survivorship language and you want to add it, you will need to execute and record a new deed. The mechanics are straightforward, but working with an attorney is worth the cost to avoid unintended tax consequences or title defects.
Unmarried co-owners should keep in mind that Alabama offers none of the tenancy-by-the-entirety protections available elsewhere. Asset protection here is limited to the modest homestead exemption and whatever structures you build through trusts or other arrangements. And because a will cannot override a survivorship right in a properly drafted joint tenancy deed, estate planning documents need to align with how the deed is written, not the other way around.