Can the Right of Survivorship Be Challenged?

The concept of “Right of Survivorship” often arises in joint ownership scenarios, where two or more individuals co-own property with the understanding that if one owner passes away, the surviving owner will automatically inherit the deceased owner’s share. But co-owners and their heirs sometimes ask: Can the right of survivorship be challenged?

What is the Right of Survivorship?

The right of survivorship ensures that when one joint owner dies, their interest in the property is automatically transferred to the surviving owner(s), bypassing the California probate process. This arrangement is typically employed to facilitate smooth transitions of property ownership, reduce legal complications, and provide peace of mind for the surviving owner(s).

In California, the most common property titles that include the right of survivorship are joint tenancy with the right of survivorship and community property with the right of survivorship. Both of these titles are commonly used by married couples. Note that tenancy in common does not include the right of survivorship. 

Common Types of Assets 

Here are some common types of assets that may include the right of survivorship:

1. Real Estate: Couples often hold property as joint tenants with the right of survivorship to ensure that the surviving spouse automatically inherits the real property without the need for probate.
2. Bank Accounts: Joint bank accounts can be set up with the right of survivorship so that funds immediately become accessible to the surviving account holder(s).
3. Investment Accounts: Similar provisions can apply to investment and brokerage accounts, allowing for seamless transfer of assets.

Grounds for Challenging the Right of Survivorship

Can the right of survivorship be challenged? Yes, this may be possible under certain conditions. Here are four common grounds for such challenges:

1. Fraud or Undue Influence: If it can be proven that the joint ownership agreement was created under fraudulent circumstances or undue influence, the right of survivorship may be invalidated. For example, if one party coerced another into adding them as a joint owner, a court might intervene to rectify the situation.
2. Mental Incapacity: If the decedent was not of sound mind when they established the joint ownership, the right of survivorship can be contested. Evidence of mental incapacity at the time of the agreement can lead to the court’s re-evaluation of the ownership structure.
3. Lack of Proper Documentation: Proper and clear documentation is crucial in establishing a joint tenancy with the right of survivorship. Ambiguities or errors in the legal documents can open the door to challenges. If the intent to create a right of survivorship is not explicitly documented, the property may be subject to probate instead.
4. Contradictory Wills or Trusts: Sometimes, a decedent’s will or trust may contradict the right of survivorship agreement. For instance, if a will specifies a different beneficiary for the property, this can create grounds for a legal dispute. Courts typically examine the timing and validity of the documents to determine which should prevail.

Overview of the Legal Process

Challenging the right of survivorship can be complex. If you plan to take legal action, hire an experienced trust and estate litigation attorney to represent your interests. 

Here’s an outline of the general process:

1. Filing a Petition: The challenger must file a petition in the appropriate court, outlining the grounds for contesting the right of survivorship.
2. Gathering Evidence: Both parties gather evidence to support their claims. This may include witness testimony, medical records, financial documents, and any relevant communication between the parties involved.
3. Court Hearing: A court hearing allows both sides to present their cases. The judge will consider the evidence and make a ruling based on the merits of the arguments and the applicable laws.
4. Court Decision: The court will issue a decision either upholding the right of survivorship or ruling in favor of the challenger, which might result in a different distribution of the property.

Preventive Measures

To minimize the risk of challenges to the right of survivorship, consider these preventive measures:

1. Clear Documentation: Ensure all documents explicitly state the intent to create a right of survivorship and are properly executed.
2. Legal Advice: Consult an experienced estate planning attorney to structure ownership arrangements and draft documents that withstand potential legal scrutiny.
3. Regular Reviews: Periodically review ownership documents to ensure they align with current intentions and legal standards.
4. Transparent Communication: Maintain open and transparent communication with all parties involved in the ownership arrangement to prevent misunderstandings and disputes.

While the right of survivorship offers a straightforward method for property transfer upon the death of a co-owner, it’s not immune to challenges. Seeking legal counsel and careful documentation are crucial steps to safeguard against disputes and ensure a smooth transfer of property according to the owners’ wishes.

If you have any questions about challenging the right of survivorship, feel free to contact our law firm.

Law Offices of Daniel A. Hunt

The Law Offices of Daniel A. Hunt is a California law firm specializing in Estate Planning; Trust Administration & Litigation; Probate; and Conservatorships. We've helped over 10,000 clients find peace of mind. We serve clients throughout the greater Sacramento region and the state of California.