Joint tenancy with right of survivorship means the surviving owner automatically gets the property when the other dies, outside probate. Tenants in common means each owner’s share passes through their estate to whomever they’ve designated — spouse, children, or, in the absence of a will, intestate heirs.
For unmarried couples in Massachusetts, the choice between these two structures has dramatic consequences. Joint tenancy is simpler and protects the surviving partner, but it can create gift tax issues, expose assets to creditors, and produce unintended results when contributions are unequal. Tenants in common preserves each partner’s share and inheritance, but requires deliberate estate planning to protect the survivor.
There’s no universally right answer. The right answer depends on what you and your partner are trying to accomplish, what each of you contributed, and what your other planning looks like.
The Two Structures
Joint Tenancy with Right of Survivorship
Two or more people own the property together. They each have an equal, undivided interest. When one dies, the survivor automatically becomes the sole owner — no probate, no will, no court process. The deed must explicitly create joint tenancy with right of survivorship; if it doesn’t, Massachusetts presumes tenants in common.
Key features:
- Right of survivorship — automatic transfer at death
- Equal shares — each owner has an equal interest, regardless of contribution
- Outside probate — passes by operation of law
- Severable — any joint tenant can break the joint tenancy by transferring their interest, converting to tenants in common
- Exposed to creditors — creditors of any joint tenant can reach the joint property
- Unifies the four “unities” — title, time, interest, and possession
Tenants in Common
Two or more people own the property together, but each owner has a separate, transferable interest. Shares can be unequal. There’s no right of survivorship — when one owner dies, their share passes through their estate.
Key features:
- No right of survivorship — each owner’s share passes by will or intestacy
- Unequal shares allowed — the deed can specify percentages
- Goes through probate at the death of an owner (unless held in trust or transferred during life)
- Separately transferable — each owner can sell or gift their share independently
- Each owner’s share is separately exposed to their own creditors
In Massachusetts, the deed language matters. Without explicit “joint tenancy with right of survivorship” or similar language, Massachusetts presumes tenants in common.
Why This Matters Most for Unmarried Couples
If you’re married, joint tenancy gives you most of what you’d expect. If your spouse dies, you keep the home; if you both die, the home goes to your shared estate plan; the marital deduction handles the tax piece. The default structure works.
For unmarried couples, the math changes. Massachusetts intestacy doesn’t recognize unmarried partners. A tenants-in-common share owned by a partner who dies without a will passes to the partner’s blood relatives, not to the surviving partner. We covered this in Inheritance Rights for Unmarried Partners.
This means:
- Joint tenancy is often the default recommendation for unmarried couples because it solves the survivorship problem automatically.
- Tenants in common is sometimes preferred when contributions are unequal, when each partner has children from a previous relationship who should inherit, or when tax considerations favor it.
The choice almost always involves trade-offs. Here’s how to think about it.
When Joint Tenancy Makes Sense
Joint tenancy is the right choice for unmarried couples when:
- Contributions are roughly equal. Both partners have put in similar money over time, and treating the home as 50/50 reflects reality.
- Both partners want the survivor to keep the home automatically. The simplicity of right of survivorship matters more than the precise allocation of shares.
- There aren’t significant outside heirs to consider. If neither partner has children from a previous relationship, the simplicity wins.
- Probate avoidance is a priority. Joint tenancy bypasses probate at the first death — useful in Massachusetts, where probate can take months and costs money.
- The asset isn’t large enough to trigger estate tax planning issues. Massachusetts has a $2 million estate tax threshold; couples worth more than that may have other reasons to avoid joint tenancy.
When Tenants in Common Makes Sense
Tenants in common is the right choice when:
- Contributions are very unequal. If one partner contributed 80% of the down payment and pays 80% of the mortgage, the deed should reflect that 80/20 ownership — joint tenancy doesn’t allow it.
- Each partner has children to inherit from. A partner who has adult children from a previous relationship may want their share to pass to those children, not to the surviving partner.
- Estate tax planning matters. Holding property as tenants in common preserves each owner’s separate basis and separate estate for tax planning purposes. Joint tenancy can complicate the math.
- You’re using a trust. When real estate is held by a trust, the trust agreement controls the disposition — and tenants-in-common interests held by individual partners (or by their respective trusts) can produce more flexible outcomes.
If you go this route, the survivor needs an estate plan that ensures they don’t lose the home. A typical structure: tenants in common, with each partner’s will or trust granting the surviving partner a life estate, the right to live in the home for life with the remainder passing to the deceased partner’s children.
The Hidden Issues with Joint Tenancy
Joint tenancy is simple — but it carries real risks that often get overlooked:
1. Gift Tax Exposure
When you add an unmarried partner to the title of a property you previously owned alone, you’ve made a gift of half the value to your partner for tax purposes. If the property is worth more than the annual gift tax exclusion (currently $19,000 per recipient in 2025; check the IRS gift tax page for current figures) above contributions actually made, a gift tax return may be required.
Married couples don’t have this issue — gifts between spouses are unlimited. Unmarried couples do.
2. Creditor Exposure
If one partner has serious financial problems — a lawsuit, a tax debt, a business failure — creditors can attach their joint tenancy interest. The other partner’s interest may be protected, but the creditor can force a sale or partition, leaving the non-debtor partner in a difficult position.
3. Loss of Step-Up in Basis on the Decedent’s Half
When property is held jointly and one owner dies, the surviving owner gets a step-up in basis only on the decedent’s portion (typically 50%, though there are exceptions). If the surviving partner later sells, they pay capital gains on their original basis for their half. With proper planning — including holding through a trust — full step-up can sometimes be preserved. Our overview of step-up in basis covers the mechanics.
4. Loss of Control During Life
A joint tenant cannot sell or refinance without the other’s signature. If the relationship ends, you may need to litigate to partition the property.
5. Inadvertent Disinheritance
Joint tenancy beats the will. If your will says “all my real estate to my children,” but the home is held in joint tenancy with your partner, the home goes to the partner. Many testators don’t realize this and are surprised when their plans don’t work as expected.
The Trust Solution
For many unmarried couples, the cleanest structure is neither joint tenancy nor tenants in common, but trust ownership. A revocable living trust can:
- Hold the home with both partners as beneficiaries
- Provide a life estate to the survivor with remainder to children, charity, or other beneficiaries
- Avoid probate at both deaths
- Preserve flexibility around tax planning and basis
- Reduce gift tax exposure compared to adding a partner to a deed
- Insulate the home from some creditor risks (depending on the trust structure)
What is a living trust walks through how trusts work in Massachusetts. For couples with significant assets or with children from prior relationships, this is often the structure we recommend.
A Practical Framework
For unmarried couples buying a home together in Massachusetts, here’s how we typically think about the choice:
| Situation | Likely Best Structure |
| Roughly equal contributions, no outside heirs to protect, simple finances | Joint tenancy with right of survivorship |
| Unequal contributions, want allocation to reflect reality | Tenants in common, percentages reflecting contribution |
| Either partner has children from a prior relationship | Tenants in common with life estate / trust planning |
| High net worth, estate tax exposure | Trust ownership, often with each partner’s separate revocable trust |
| Concern about creditors of one partner | Trust ownership with appropriate protective provisions |
| Strong concern about gift tax | Tenants in common reflecting actual contribution; consider trust ownership |
Frequently Asked Questions
Does joint tenancy avoid probate in Massachusetts? Yes, at the first death. The surviving joint tenant takes title automatically. The asset is part of the survivor’s estate at their later death, however, and may go through probate then if there’s no further planning.
Can we change from joint tenancy to tenants in common later? Yes. Either party can convert by executing a new deed transferring their interest. This severs the joint tenancy. It’s a routine legal step but should be done deliberately, with attention to gift tax and family-law consequences.
Does adding my partner to my deed have tax consequences? Potentially yes, including gift tax. If the property is worth more than the annual exclusion above contributions made, a gift tax return may be required. Talk to a Massachusetts estate planning attorney before retitling.
What happens if one of us declares bankruptcy? The bankruptcy trustee can reach the bankrupt spouse’s interest. Joint tenancy may not protect the property from being sold for the benefit of the bankrupt’s creditors.
Does Massachusetts allow tenancy by the entirety for unmarried couples? No. Tenancy by the entirety in Massachusetts is reserved for legally married couples. It carries enhanced creditor protection that joint tenancy does not.
What if we both die together? With joint tenancy, the property goes to the heirs of whichever spouse is deemed to have survived (often by 120 hours under the Massachusetts simultaneous death rule), or it’s divided according to other rules. Trust planning addresses this far more cleanly.
Talk to a Massachusetts Estate Planning Attorney
The deed is just paper — but it determines who keeps the house. We help unmarried couples in Massachusetts make this decision deliberately, with the right supporting estate plan.
The Law Offices of Kimberly Butler Rainen serves couples across Andover, North Andover, Reading, North Reading, Middleton, Georgetown, and the surrounding Merrimack Valley. Call or reach out through our contact page to schedule a conversation. Our estate planning services cover real estate titling and the related planning.