Virginia Survivorship Laws: Ownership Forms, Deeds, and Filings

Virginia’s survivorship laws do not hand a surviving co-owner the deceased owner’s share by default. Under state law, a joint tenant’s interest passes through their estate unless the deed, title, or account agreement uses specific survivorship language. That single rule drives almost every question people ask about jointly held homes, bank accounts, and vehicles in Virginia, and it is the reason two people can own something “jointly” for decades and still see half of it end up in probate.

The Default Rule: Joint Ownership Alone Is Not Enough

Virginia abolished the common-law right of survivorship between joint tenants by statute. When a joint tenant dies, their share passes to their heirs, through their will, or to their personal representative, exactly as if they had held the property as a tenant in common.¹ The only way around this default is for the transferring document to make clear that the survivor was meant to take the deceased owner’s share.

Section 55.1-135 spells out what “clear” means. Titling property in two names “jointly” or as “joint tenants” creates joint ownership without survivorship. To get survivorship, the deed or title has to add “with survivorship” or equivalent wording.² A deed that reads “joint tenants” and stops there gives you a tenancy in common in Virginia. Virginia courts read this requirement strictly, so vague language will not carry a survivorship intent.

Ownership Forms That Actually Pass Property Automatically

Three ownership structures let property transfer to a surviving co-owner without probate.

Joint Tenancy With Right of Survivorship

Two or more people hold equal shares, and when one dies, their interest transfers automatically to the surviving owners. The deed or title must include explicit survivorship language such as “as joint tenants with right of survivorship.”² All joint tenants must acquire their interest at the same time and through the same document. If one owner later transfers their share to someone else, the joint tenancy breaks apart and becomes a tenancy in common, which strips the survivorship feature.

Tenancy by the Entirety

This form is limited to married couples. It functions like joint tenancy with survivorship and adds a strong layer of creditor protection. On the death of one spouse, the survivor becomes sole owner automatically.³ The deed must designate the owners as “tenants by the entireties” or “tenants by the entirety.” The statute covers real property, personal property, and the proceeds from selling entirety real estate. Neither spouse can sever the tenancy alone: severing real property held this way requires a deed signed by both spouses as grantors. Divorce converts a tenancy by the entirety into a tenancy in common and ends survivorship.

Payable-on-Death Accounts

A POD designation names a beneficiary who receives the account funds when the holder dies, without probate. The named payee has no access while the owner is alive. Once the owner dies, the bank pays the balance to the POD payee on proof that the payee survived the account holder.⁴ POD works for checking accounts, savings accounts, and certificates of deposit. The owner can change or remove the beneficiary at any time without notifying the current payee. If multiple beneficiaries are named, the funds are typically split equally unless the account agreement says otherwise.

Transfer on Death Deeds

Virginia adopted the Uniform Real Property Transfer on Death Act, which lets a property owner sign a deed now that transfers real estate to a named beneficiary at death, outside probate. The owner keeps full control during life and can sell, mortgage, or otherwise use the property freely.

A valid TOD deed in Virginia has to meet the requirements in § 64.2-628:

It must contain the essential elements of a recordable deed.
It must state that the transfer to the beneficiary occurs at the owner’s death.
It must be recorded in the circuit court clerk’s office where the property is located before the owner dies. An unrecorded TOD deed has no effect.
Every owner must execute the deed if the property has joint owners.

⁵

Revocation happens by recording a revocation instrument or by recording a new TOD deed. A will cannot revoke a previously recorded TOD deed.⁶ This trips people up. Updating a will to leave the property to someone new does nothing if the older TOD deed is still on record.

Transfer on Death Vehicle Titles

Virginia lets vehicle owners name a beneficiary directly on the title. The Virginia DMV calls it a “transfer on death” title, and it operates much like a POD account. The beneficiary has no ownership rights while the owner is alive, and the owner can sell or trade the vehicle without the beneficiary’s involvement.⁷

A few limits apply. The beneficiary has to be an individual, not a business. You cannot add a beneficiary designation to a vehicle with an existing lien, and adding a lien later removes the designation. Setting one up requires a Beneficiary Transaction Request form (VSA 18), the Virginia title, a substitute title application (VSA 67), and a $15 fee submitted to the DMV.

After the owner dies, the beneficiary has 120 days to apply for a new certificate of title and provide a death certificate. Missing that window is fatal to the claim.

The 120-Hour Survival Requirement

Virginia’s Uniform Simultaneous Death Act adds a timing rule that shows up often when co-owners die close in time. For a survivorship transfer to take effect, the survivor has to have outlived the other owner by at least 120 hours (five days), established by clear and convincing evidence. If that gap cannot be shown, the property does not pass to the “survivor” at all.⁸

When two co-owners die within the 120-hour window, the property splits: half passes as if one owner survived, half as if the other did, and each half moves through that person’s estate. With three or more co-owners where no one is shown to have outlived the others by five days, the property divides equally among each owner’s estate. The rule applies to joint tenants, tenants by the entirety, POD beneficiaries, and beneficiaries under governing instruments. A deed or account agreement can override it with specific language, but most standard forms do not.

What the Survivor Actually Files

The paperwork after a death depends on how title was held.

If the deed includes survivorship language, no probate is needed for that property. The surviving co-owner records a certified copy of the death certificate with the circuit court clerk in the jurisdiction where the property sits, which updates the land records to show the survivor holds full title. No new deed, no court approval, no executor involvement.

If the property was solely owned or the deed lacks survivorship language, that share goes through probate. With a will, the named executor opens probate in the circuit court and receives a certificate of qualification. Without a will, the court appoints an administrator, who obtains letters of administration and files an affidavit of heirs; Virginia’s intestacy statute then controls who inherits.⁹

For POD accounts and TOD vehicle titles, the beneficiary presents a death certificate (and, for vehicles, the DMV title paperwork within 120 days) directly to the institution or agency. For TOD real estate, the recorded deed already sits in the land records, so the beneficiary records the death certificate to complete the transfer of title.

Taxes on Survivorship Property

Skipping probate does not skip the tax rules.

Federal Estate Tax

Virginia has no state estate tax, but survivorship property is included in the deceased owner’s gross estate for federal purposes. The federal estate tax exemption for deaths in 2026 is $15 million per individual.¹⁰ Estates below the threshold owe nothing, but executors still have to count survivorship assets when checking whether the estate crosses it.

Stepped-Up Basis

Property that transfers at death generally gets a new tax basis equal to fair market value on the date of death. How much of the basis steps up depends on how the property was owned.

For tenancy by the entirety, IRS Publication 551 treats the property as a “qualified joint interest.” The surviving spouse’s basis is their original cost in their half (adjusted for depreciation) plus the stepped-up basis of the half they inherit.¹¹ Only half the property gets a basis adjustment. Joint tenancy with right of survivorship between non-spouses works the same way: only the deceased owner’s share steps up. If you and a sibling held a rental property as joint tenants and your sibling dies, your half keeps its original cost basis, which matters when you sell.

Changing or Revoking a Survivorship Arrangement

Survivorship is not permanent, and the mechanics of undoing it depend on the form.

With joint tenancy with survivorship, one owner can unilaterally break it by transferring their interest to a third party, which converts the ownership into a tenancy in common. Owners can also sign a new deed together to change the structure.

Tenancy by the entirety is harder to unwind. Neither spouse can sever it alone. Change requires a deed signed by both spouses, mutual agreement, or divorce.³

POD designations are the simplest to change. The account holder completes a new beneficiary form with the bank, and the current beneficiary does not have to be notified. If the account holder becomes incapacitated, an agent under a durable power of attorney can change the beneficiary only if the power of attorney document expressly grants that authority. Without that language, changing the designation may require court involvement.

TOD deeds are revoked by recording a revocation or a new TOD deed with the circuit court clerk before death. A will still cannot override a recorded TOD deed.

Creditors and Medicaid Recovery

Keeping property out of probate does not necessarily keep it away from creditors.

Tenancy by the entirety offers the strongest protection. Property held this way is shielded from the individual debts of either spouse; only joint creditors of both spouses can reach it. That protection can extend to entirety property placed in a revocable or irrevocable trust, provided the spouses remain married, the property stays in the trust, and both remain current beneficiaries.³

Joint tenancy with survivorship offers less. Once the property transfers to the surviving owner, the deceased owner’s individual creditors generally cannot pursue it, but pre-existing liens and recorded judgments against the deceased owner’s interest survive the transfer. POD accounts and TOD deeds offer the least protection. If the probate estate cannot pay outstanding debts, creditors can petition the court to reach non-probate assets, including those passing by beneficiary designation.

Medicaid estate recovery is a separate concern. Virginia’s Medicaid program can recover long-term care costs from a deceased recipient’s estate, and Virginia defines “estate” broadly to include all property in which the individual had any legal title or interest at death, not just probate assets.¹² Survivorship property, joint accounts, and beneficiary-designated assets can fall within reach, so planning for long-term care should account for this on top of the probate-avoidance benefit.

Where Survivorship Planning Falls Short

Survivorship handles one scenario well: an orderly transfer when one co-owner dies first. Several situations sit outside that scope.

A survivorship designation made under coercion, fraud, or when the owner lacked capacity can be invalidated by a Virginia court. These disputes tend to come up when family members contest changes made shortly before death.

Survivorship does nothing for solely owned property. Anyone relying on it as their entire estate plan leaves gaps whenever they acquire something in their name alone. A will or trust is still needed for those assets, for naming guardians for minor children, and for distribution preferences that survivorship’s all-or-nothing structure cannot handle.

Survivorship property is also excluded from the probate estate, which means heirs expecting to receive a share through the will can end up with less than they anticipated. When the highest-value assets all carry survivorship designations, the probate estate can be small, and the will has little left to distribute. Coordinating survivorship titling with the rest of the estate plan is what keeps that surprise from happening.

1
Virginia Code Commission. Virginia Code 55.1-134 – Survivorship Between Joint Tenants Abolished
2
Virginia Code Commission. Virginia Code 55.1-135 – Joint Ownership in Real and Personal Property
3
Virginia Code Commission. Virginia Code 55.1-136 – Tenants by the Entirety in Real and Personal Property; Certain Trusts
4
Virginia Code Commission. Virginia Code 6.2-614 – Payment of P.O.D. Account
5
Virginia Code Commission. Virginia Code 64.2-628 – Requirements
6
Virginia Code Commission. Virginia Code – Article 5, Uniform Real Property Transfer on Death Act
7
Virginia Department of Motor Vehicles. Designate a Beneficiary on a Vehicle Title
8
Virginia Code Commission. Virginia Code – Chapter 22, Uniform Simultaneous Death Act
9
Virginia Code Commission. Virginia Code 64.2-200 – Course of Descents Generally
10
Internal Revenue Service. What’s New – Estate and Gift Tax
11
Internal Revenue Service. Publication 551, Basis of Assets
12
Virginia Department of Medical Assistance Services. Estate Recoveries Policy Manual