Joint tenants with right of survivorship in Washington State are two or more co-owners who each hold an equal share of property, with the deceased owner’s share passing automatically to the survivors without probate. The arrangement is authorized by RCW 64.28.010, which gives it the “incidents of survivorship and severability as at common law.”1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized Washington is also a community property state, and that combination creates a tax trap that married couples in particular need to understand before choosing this form of title.
How the Survivorship Transfer Works
When a joint tenant dies, their interest is absorbed by the remaining joint tenants by operation of law. No court order, no executor, no waiting. If three people hold property as joint tenants and one dies, the two survivors each now own half. When the second dies, the last survivor owns everything outright.
The appeal is probate avoidance. Probate in Washington can take months and involves court fees, attorney costs, and public disclosure of the estate. Joint tenancy sidesteps all of that for the asset held in that form. The statute itself frames the purpose as letting property pass “to the survivor without the cost or delay of probate proceedings.”1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized
One consequence people miss: because the transfer happens outside the will, the will has no say. If you own a home as a joint tenant with your sibling and your will leaves your “share” of that home to your child, the will loses. Your sibling takes the property. The deed controls, and the deceased owner’s interest was never part of the probate estate to begin with. Estate planning in Washington requires looking at how every asset is titled, not just what the will says.
Creating a Joint Tenancy Correctly
Washington sets two hard requirements. The joint tenancy must be created by a written instrument, and that instrument must expressly declare the interest to be a joint tenancy.1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized Language like “as joint tenants with right of survivorship” or the abbreviation “JTWROS” satisfies this. Vague language about sharing ownership does not.
The default matters. Under RCW 64.28.020, every interest created in favor of two or more people is an interest in common unless the document declares it to be a joint tenancy.2Washington State Legislature. Washington Code RCW 64.28.020 – Interest in Favor of Two or More Is Interest in Common A deed that simply lists two names creates a tenancy in common, and there is no right of survivorship. Tenants in common can hold unequal shares (say, 70/30), and when one dies their share goes into their estate and passes by will or intestacy. Joint tenants must hold equal shares, and the survivorship transfer happens automatically.
The statute is flexible about how a joint tenancy can be created. A sole owner can transfer property to themselves and another person as joint tenants. Tenants in common can convert their ownership to a joint tenancy. Spouses holding community property can re-title it as joint tenancy.1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized For real estate, the deed should be recorded with the county auditor in the county where the property sits. An unrecorded deed is valid between the parties who signed it, but recording protects against later buyers; under RCW 65.08.070, an unrecorded conveyance is void against a subsequent good-faith purchaser who records first.3Washington State Legislature. Washington Code RCW 65.08.070 – Recording
Why Married Couples Should Think Twice
This is where Washington gets complicated. Joint tenancy interests held by both spouses (or both registered domestic partners) are presumed to be community property under RCW 64.28.040. The survivorship mechanism still works at death, but the underlying property is treated as community property for other legal purposes. If the joint tenancy is severed during both spouses’ lifetimes, the property reverts to its presumed community property character.4Washington State Legislature. Washington Code RCW 64.28.040 – Character of Joint Tenancy Interests Held by Both Spouses or Both Domestic Partners
The tax consequences are where real money is on the line. When someone dies, federal law “steps up” the tax basis of their property to fair market value. For joint tenancy, only the deceased owner’s half gets this step-up. The surviving joint tenant’s half keeps its original basis. Community property is different. Under IRC Section 1014(b)(6), both halves of community property step up when one spouse dies, as long as at least half was includable in the deceased spouse’s estate.5Office of the Law Revision Counsel. 26 US Code 1014 – Basis of Property Acquired From a Decedent
Consider a couple who bought a home for $200,000 that’s now worth $800,000. If the surviving spouse later sells:
- Community property: Both halves step up. New basis $800,000. Capital gain on an immediate sale: $0.
- Joint tenancy: Only the deceased spouse’s half steps up. New basis $500,000 ($100,000 original half plus $400,000 stepped-up half). Potential capital gain: $300,000.
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Washington couples who want probate avoidance without giving up the double step-up usually get there through a community property agreement with a right of survivorship under RCW 26.16.120. That combination generally beats joint tenancy on taxes while achieving the same probate result.
What Joint Tenancy Does Not Protect You From
Creditors of a Co-Owner
The Washington statute is explicit that creating a joint tenancy “shall not derogate from the rights of creditors.”1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized A creditor with a judgment against one joint tenant can place a lien on that person’s interest. What happens next depends on timing. If the debtor joint tenant dies first, the right of survivorship may extinguish the lien, since the debtor’s interest ceases to exist. But if the creditor forces a sale first, or the joint tenancy is severed before the debtor dies, the lien attaches to the debtor’s share. Creditors can also petition for partition to force a sale. Putting property in joint tenancy with someone who has significant debts or legal exposure does not wall the property off from those problems.
Medicaid Estate Recovery
Many people assume joint tenancy avoids Medicaid recovery because it avoids probate. In Washington that assumption is wrong. RCW 43.20B.080 authorizes the Department of Social and Health Services to recover long-term care costs not only from the probate estate but also from “nonprobate assets” as defined by RCW 11.02.005. Joint tenancy property is a nonprobate asset. Recovery applies to individuals who were 55 or older when they received medical assistance and covers nursing facility services, home and community-based services, and related hospital and prescription costs.6Washington State Legislature. Washington Code RCW 43.20B.080 – Recovery for Paid Medical Assistance The state can file a claim against the deceased person’s interest in the jointly held asset, which can force the surviving joint tenant to pay to keep the property.
Adding someone as a joint owner is also a transfer of assets and can trigger the Medicaid five-year lookback. Add a joint tenant to your deed, apply for Medicaid within five years, and the transfer may cause a penalty period of ineligibility.
Severing a Joint Tenancy
Any joint tenant can break the joint tenancy alone. RCW 64.28.010 preserves “the unilateral right of each tenant to sever the joint tenancy.”1Washington State Legislature. Washington Code RCW 64.28.010 – Joint Tenancies With Right of Survivorship Authorized No court approval and no consent from the other owners is required.
The most common method is transferring your share to a third party. If A, B, and C hold property as joint tenants and A sells their one-third to D, the joint tenancy is severed as to that share. D becomes a tenant in common; B and C may continue as joint tenants with each other for their two-thirds. D’s share can now be passed through a will or by intestacy.
For married couples, either spouse can sever a joint tenancy, and when they do the property is presumed to revert to community property.4Washington State Legislature. Washington Code RCW 64.28.040 – Character of Joint Tenancy Interests Held by Both Spouses or Both Domestic Partners That matters in divorce, where the community property presumption drives how the property is divided.
Federal Gift Tax When You Add Someone to a Deed
Adding someone to a deed as a joint tenant is a gift for federal tax purposes. Because Washington lets any joint tenant unilaterally sever their interest, the new co-owner immediately has the legal right to claim and sell their share. The gift is valued at the new owner’s fractional interest. For a two-person joint tenancy, that’s half the property’s fair market value.
If the gift exceeds the annual gift tax exclusion ($19,000 per recipient in 2026), the person making the gift must file a gift tax return on IRS Form 709.7Internal Revenue Service. What’s New – Estate and Gift Tax Most people won’t owe actual gift tax because of the lifetime exemption, but the filing requirement itself trips people up. Real estate of any significant value will almost certainly exceed the annual exclusion, making the return mandatory. Transfers between spouses who are both U.S. citizens are covered by the unlimited marital deduction and don’t trigger the tax or the filing.
Clearing Title After a Joint Tenant Dies
The survivorship transfer is automatic, but the public records don’t update themselves. For Washington real estate, the surviving owners file documentation with the county treasurer and record it with the county auditor. Under WAC 458-61A-202, the required documentation is a certified copy of the death certificate, and the transfer is exempt from Washington’s real estate excise tax.8Washington State Legislature. WAC 458-61A-202 – Exemptions and Required Documentation
Skip this step and the county’s records still show a deceased person on the title, which creates problems the first time the survivor tries to sell, refinance, or use the property as collateral. For financial accounts, the process is simpler: contact the institution with a certified death certificate, and the account is re-titled into the survivor’s name alone.