Last updated August 5, 1999
Most California married couples own their homes as “joint tenants,” because they want the surviving spouse to own the entire home, without any formal court proceeding to confirm the transfer.
Unfortunately, owning property as “joint tenants” can seriously affect the taxation of any subsequent sale of the property after the death of one spouse. This is because the U.S. Internal Revenue Code provides special treatment for property owned by a married couple as “community property,” but not for similar property owned as “joint tenants.”
Special Tax Benefit for “Community Property”
When someone dies, his or her heirs are treated as if they purchased the deceased person’s property for its fair market value on the date of death. However, if the deceased person owned only a one-half interest as a “joint tenant,” only that one-half interest receives this treatment (called an “adjusted basis”).
Thus, if a married couple, Richard and Joan, buy a house as “joint tenants” for $400,000, the IRS considers that each paid $200,000 for a one-half interest. If Richard later dies, Joan automatically owns the entire house, and Richard’s one half share of the house is revalued as of the date of his death. If the house was worth $1,500,000 when Richard died, then Joan is treated as if she paid $950,000 for the house — computed by adding her share of the purchase price ($200,000), to the value of Richard share when he died ($750,000).
In contrast, the IRS treats “community property” as if it were owned completely by the deceased spouse, in applying this special “adjusted basis” rule. (For other purposes, such as computing estate taxes, only one-half of the value of community property is counted.) Therefore, if Richard and Joan bought their house as “community property” for $400,000, and Richard later died, leaving his share to Joan, the entire house would be assigned a new “basis” at current fair market value.
The result is that if Joan decides to sell the “joint tenancy” house for $1,500,000 shortly after Richard’s death, she would realize a taxable capital gain of $550,000 (the $1,500,000 sale price minus her $950,000 “adjusted basis,” computed two paragraphs above). If the same house were owned as “community property,” however, she would recognize no capital gain, because her “adjusted basis” would be the same as the sale price.
Of course, no tax will be due from the sale of the former “joint tenancy” home if the seller quickly bought another home at the same or higher price. Also, the surviving spouse might avoid or reduce the capital-gains tax even if the house were owned as “joint tenancy,” if she can still use the once-in-a-lifetime $500,000 exclusion.
Drawbacks of “Community Property”
The chief drawback of “community property,” as a form of legal title, is that it does not provide automatic transfer to the survivor at death. Instead, the survivor must petition the court for a “spousal property” order, or initiate a probate proceeding. In California, it is not currently possible to own property as “community property” while also providing for an automatic right of survivorship.
However, to capture the best of both situations, it is possible to transfer property into a “living trust” (thus avoiding any probate court proceedings) while also retaining its character as “community property” (thus obtaining a full “adjusted basis”).
It is possible to file a spousal property petition (or initiate probate) and include “joint tenancy” property in the petition, arguing that it was community property all along. However, this uncertain procedure eliminates the benefit of the joint tenancy form of title, which is the automatic transfer of title at death.
Another drawback of “community property” ownership is that the entire property becomes liable for the debts of either spouse. In addition, “community property” will usually be equally divided in case of divorce, while “joint tenancy” property can be traced to separate-property sources to permit unequal division.
But Beware of Declining-Value Property
The special “adjusted basis” rule usually works so that couples who own property as “community property” are better off than couples who own property as “joint tenants,” because most property increases in value over time.
However, in the recent California real estate market, this general rule hasn’t always been true. If Richard and Joan bought their home in 1989 for $400,000, it is possible that the current fair market value might be only $350,000. If so, it would be preferable to own the property as “joint tenants” to avoid having the survivor’s basis in the property reduced to $350,000. (Instead, the basis would only be reduced halfway, to $375,000.)