In Maryland, joint tenants with right of survivorship are co-owners who each hold an equal share of a property, and when one dies, that share passes automatically to the survivors without going through probate. Maryland doesn’t hand you this arrangement by default. State law presumes against it, so the deed has to say so in plain terms, and the tax side of the arrangement catches many owners off guard.
How to Create a Joint Tenancy on a Maryland Deed
Maryland is a state that defaults to tenancy in common when a deed is silent about the form of ownership. Under Maryland Real Property Code § 2-117, no deed, will, or other written instrument creates a joint tenancy unless it expressly says so.1Maryland General Assembly. Maryland Real Property Code Section 2-117 – Presumption Against Joint Tenancy If a deed lists two names and nothing more, the owners are tenants in common with no survivorship rights. To get the arrangement most co-buyers actually want, the deed needs language such as “as joint tenants with right of survivorship.”
Language alone isn’t enough. Maryland also requires the four traditional “unities” to be present: every co-owner must take their interest at the same time, from the same deed, in equal shares, with equal rights to possess the whole property.2The Maryland People’s Law Library. Joint Ownership of Real Property Break any one and the joint tenancy fails, leaving a tenancy in common. That’s why adding a name to an existing deed usually requires a new conveyance rather than a simple amendment. Otherwise the unities of time and title aren’t satisfied.
What Married Couples Get Instead
If you’re married and buying property with your spouse in Maryland, you probably aren’t creating a joint tenancy even if that’s what you had in mind. When a married couple takes title together, Maryland presumes tenancy by the entirety.2The Maryland People’s Law Library. Joint Ownership of Real Property Tenancy by the entirety carries the same survivorship feature as a joint tenancy, but adds two protections a joint tenancy doesn’t have.
First, a creditor with a claim against only one spouse generally cannot reach entirety property. A joint tenancy offers no equivalent shield. Second, neither spouse can sever tenancy by the entirety on their own; a sale or transfer needs both signatures. A joint tenant, by contrast, can convey their share to a third party unilaterally. If a married couple holding as tenants by the entirety divorces, the ownership automatically converts to a tenancy in common.2The Maryland People’s Law Library. Joint Ownership of Real Property
How Survivorship Actually Works at Death
When one joint tenant dies, their interest passes to the surviving owners by operation of law. The property doesn’t enter the deceased person’s probate estate, isn’t governed by their will, and isn’t subject to the delays of estate administration.2The Maryland People’s Law Library. Joint Ownership of Real Property The survivors record a death certificate and an affidavit with the county land records to clear the title.
That automatic transfer is the feature, and it’s also the trap. Your will has no say over joint tenancy property. If you own a house as joint tenants with your sibling and you want your share to go to your children, that isn’t going to happen. Your sibling gets it. People often create joint tenancies for probate convenience without thinking through this loss of control, and it becomes a real problem when family circumstances shift.
How a Joint Tenancy Can End Before Death
Joint tenancy is easier to break than most owners realize, and some of the ways it ends aren’t voluntary.
Transfer to a Third Party
Any joint tenant can sever the arrangement by transferring their interest. The transfer breaks the unity of title, and the new owner takes as a tenant in common with the remaining joint tenants.3Maryland Judiciary. Elizabeth Powers Chambers v. Michael Cardinal, et al. With only two original tenants, survivorship disappears entirely. With three or more, the remaining originals may still hold as joint tenants among themselves.
Partition
When co-owners can’t agree what to do with the property, any of them can file a partition action. Under Maryland Real Property Code § 14-107, a circuit court can order the property physically divided, or, if a division would cause loss to the parties, order a sale and split the proceeds.4Maryland General Assembly. Maryland Real Property Code Section 14-107 – Partition Either result ends the joint tenancy. The right to seek partition exists whether or not a co-owner is a minor, disabled, or a nonresident.
Bankruptcy
A Chapter 7 filing by one joint tenant automatically severs the joint tenancy in Maryland. The U.S. Bankruptcy Court for the District of Maryland has held that creation of the bankruptcy estate acts as a conveyance from the debtor to the trustee, destroying the four unities and converting the ownership to a tenancy in common.5United States Bankruptcy Court – District of Maryland. Memorandum Directing Distribution of Reserved Real Estate Net Sale Proceeds – In re Donna J. Monroe The same is not true of tenancy by the entirety between spouses, where the unities survive the filing.
Creditor Exposure You Should Know About
Joint tenancy is not a creditor shield. While a joint tenant is alive, their creditors can obtain a judgment lien against that tenant’s interest. Enforcing the lien would sever the joint tenancy and strip the survivorship right from all the co-owners.2The Maryland People’s Law Library. Joint Ownership of Real Property
After a joint tenant dies, their interest vanishes at death and the survivors take by operation of law, so the property generally isn’t reachable by the deceased person’s creditors through probate. That protection is real but narrow. A lien already recorded against the property before death may still stick. And for anyone who needs meaningful creditor protection during life, joint tenancy is the wrong tool. Tenancy by the entirety, available only to married couples, is materially stronger.
Maryland Estate Tax on Joint Tenancy Property
Avoiding probate is not the same as avoiding estate tax. Maryland imposes its own estate tax on estates of $5 million or more, and that threshold applies to the total gross estate, not just what goes through probate.6Comptroller of Maryland. About Maryland Estate Tax The $5 million figure was set by the General Assembly in 2018 and stays in place until the legislature changes it. Married couples can effectively combine exemptions up to $10 million through portability.
Maryland’s estate tax is graduated, with a top marginal rate of 16% on the portion of the taxable estate above roughly $10 million.7Maryland General Assembly. Fiscal and Policy Note – Senate Bill 211 Estates that fall below the federal exemption can still owe Maryland tax if they exceed the state threshold. The Comptroller’s office lists “joint assets with right of survivorship” among the assets that make up the gross estate.6Comptroller of Maryland. About Maryland Estate Tax How much of the joint property is counted depends on the relationship between the owners, which the federal rules described below govern.
Maryland Inheritance Tax
Maryland is one of the few states that imposes both an estate tax and a separate inheritance tax. The inheritance tax runs at a flat 10% on property passing at death, but many close family members are fully exempt.8The Office of the Register of Wills. Inheritance Tax
No Maryland inheritance tax is owed by:
- A spouse or registered domestic partner
- Children, grandchildren, great-grandchildren, and stepchildren
- Parents and grandparents
- Siblings
- Spouses of children or of lineal descendants
Everyone else pays the 10% rate on what they receive, including nieces, nephews, aunts, uncles, cousins, friends, and unrelated individuals.9Justia Law. Maryland Code Tax-General 7-203 – Exemptions The survivorship transfer counts as a transfer at death for this purpose. Holding property as joint tenants with a nephew, for example, means the value of your share passing to them at your death is subject to the 10% tax.
Federal Estate Tax Inclusion
Federal law treats spousal and non-spousal joint tenancies very differently.
Spouses
When spouses hold property as joint tenants (or as tenants by the entirety), exactly half the value is included in the first spouse’s gross estate, regardless of who paid.10Office of the Law Revision Counsel. 26 USC 2040 – Joint Interests The unlimited marital deduction typically wipes out any federal estate tax on that half. No contribution tracing required.
Non-Spouse Co-Owners
For unmarried joint tenants, the default rule is harsher. The IRS presumes the entire value of the property belongs in the deceased tenant’s gross estate. Survivors can reduce the included amount only by proving they contributed their own money toward the purchase.10Office of the Law Revision Counsel. 26 USC 2040 – Joint Interests A parent who buys a $600,000 house and adds an adult child as a joint tenant without any contribution from the child leaves the full $600,000 in their own estate at death. If the child paid half, only $300,000 is included. Records of who paid what are essential.
The federal estate tax exemption for 2026 is approximately $6.5 million per person, down substantially from roughly $13.6 million in 2025 with the sunset of the 2017 Tax Cuts and Jobs Act provisions. For estates near that threshold, how much of a jointly held property gets counted can meaningfully shift the tax bill.
Gift Tax When Adding Someone to a Deed
Putting another person on your deed as a joint tenant can trigger federal gift tax. Once they have the right to sell their share, the IRS treats the arrangement as a completed gift equal to the value of the interest transferred. Add a joint tenant to a $500,000 property and you’ve made a $250,000 gift.
The annual gift tax exclusion for 2026 is $19,000 per recipient.11Internal Revenue Service. Frequently Asked Questions on Gift Taxes Gifts above that amount must be reported on a federal gift tax return, though no tax is actually due until the lifetime exemption is used up. Many owners add a child or family member to a deed without realizing they’ve triggered a filing obligation. This is one of the most commonly overlooked consequences of creating a joint tenancy.
Step-Up in Basis and Capital Gains
Joint tenancy affects the tax basis of the property when a co-owner dies, and this is where families often lose money without noticing. Under federal law, property included in a decedent’s gross estate receives a step-up in basis to fair market value at the date of death.12Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent Only the portion included in the estate gets that adjustment.
For spouses, that means a step-up on half. If a couple bought a home for $200,000 and it’s worth $600,000 when one spouse dies, the survivor’s new basis is $400,000: $100,000 of original basis on their own half, plus $300,000 stepped-up basis on the inherited half. A later sale at $600,000 produces $200,000 in taxable gain rather than $400,000.
For non-spouse joint tenants where the deceased paid for everything, the entire value is included in the estate and the survivor gets a full step-up. Where the survivor contributed half the purchase price, only the decedent’s half steps up and the survivor’s original basis stays put on their portion. The contribution question matters twice: once for estate tax inclusion, and again for the capital gains basis.
Property passed through a will or a trust, by contrast, gets a full step-up on the entire asset. For a highly appreciated home, the capital gains cost of joint tenancy’s partial step-up can easily exceed whatever probate would have cost. That trade-off deserves a hard look before choosing joint tenancy as an estate planning shortcut.