| Quick answer: It depends entirely on how the property is titled, and in Alabama the exact wording of the deed controls the outcome. Under Alabama Code Section 35-4-7, a deceased joint tenant’s interest does not pass to the surviving owner unless the instrument says the tenancy carries a right of survivorship. When that language is present, the property generally passes automatically to the surviving owner and avoids probate, no matter what the will says. When it is missing, Alabama treats the owners as tenants in common, and the deceased owner’s share passes through probate to their heirs instead. |
If you own property with someone else, you have probably assumed the survivor simply keeps it when one of you dies. Sometimes that is right, but the outcome turns on how the property is titled, not on who the will names, and Alabama does not assume survivorship. Unless the deed says otherwise, the state presumes the opposite, and that default surprises families at the worst possible moment.
Some of the hardest conversations we have at Southern Estate Lawyers start with a family sliding a deed across the table, certain it says one thing, and watching us find that it says another. Have that conversation with our estate planning lawyers in Alabama now, while it is still just paperwork, rather than after a loss, when it can become a probate case. Below is what each form of ownership actually means in Alabama, what happens after a death under each one, and why your deed’s wording deserves a careful look.
This article is for informational purposes only and does not constitute legal advice.
Why the Deed’s Wording Controls Under Alabama Law
Alabama Code Section 35-4-7 sets the rule. When one joint tenant dies before severance, that owner’s interest does not survive to the other owners. It descends and vests as though the interest had been separated out, meaning it goes to the deceased owner’s estate. The statute then carves out one exception: if the instrument creating the tenancy states that the tenancy is with right of survivorship, or uses other words showing that intention, the interest passes to the surviving owner instead.
In plain terms, survivorship in Alabama has to be written down. It is not implied by the word “and,” it is not implied by marriage, and it is not implied by the fact that both names appear on the same line. A deed conveying property to “John Doe and Jane Doe” creates a tenancy in common. A deed conveying property to “John Doe and Jane Doe, as joint tenants with right of survivorship” creates something entirely different.
| Alabama Law Note
Under Ala. Code § 35-4-7, the survivorship language has to appear in the deed itself. Courts look at the four corners of the instrument, not at what the owners meant or later told their family. This is one of the most common reasons Alabama families end up in probate they believed they had avoided, and it is a large part of why deeds should be drafted by an attorney rather than pulled from a form website. |
Joint Tenancy With Right of Survivorship
In Alabama, a joint tenancy with right of survivorship mandates equal, undivided interests for all co-owners, with ownership passing automatically to survivors outside of probate. If unequal shares are required, a tenancy in common must be used, and Alabama does not recognize tenancy by the entirety or community property.
When one owner dies, that share transfers to the surviving owner or owners automatically. The transfer generally happens outside probate, because the survivor already held an ownership interest and the law simply recognizes that they now hold the whole. This can apply to real estate, bank accounts, vehicles, and other titled assets as well.
Does Alabama Recognize Tenancy by the Entirety or Community Property?
Families sometimes ask about these because they heard the terms from relatives in other states. Both are forms of married-couple ownership recognized elsewhere. Neither is available here. Alabama does not recognize tenancy by the entirety, and Alabama is not a community property state. A married couple in Alabama who take title without survivorship language are tenants in common, exactly like any two unrelated co-owners, and the surviving spouse does not automatically take the other half.
For married couples, this is not a lost protection. A properly drafted joint tenancy with right of survivorship accomplishes the same core goal as those out-of-state arrangements: the surviving spouse takes the whole property, automatically and without probate. It simply has to be created deliberately, in writing, which is something our lawyers help couples with across Alabama frequently.
Tenancy in Common: Alabama’s Default Form of Co-Ownership
Tenancy in common is Alabama’s default, and it works differently in two important ways. First, the shares do not have to be equal. One owner can hold 70 percent and the other 30 percent, which is often the right structure when siblings or business partners contributed unequal amounts. Second, there is no right of survivorship at all.
When a tenant in common dies, their share becomes part of their estate. It passes under their will, or under Alabama’s intestacy statutes if there is no valid will. The surviving co-owner can suddenly find themselves sharing ownership with the deceased owner’s spouse, children, or more distant heirs, people they never intended to be in business with.
| Real-World Scenario
Two adult siblings in Baldwin County inherited their parents’ land as tenants in common, with no survivorship language on the deed. When the brother passed away, his half did not go to his sister. It passed through probate to his wife and adult children, who now hold an ownership interest in property their aunt has farmed and maintained for years. A different titling choice, or a will directing that share elsewhere, would have produced a very different result. |
Alabama Co-Ownership at a Glance
| Joint Tenancy With Right of Survivorship | Tenancy in Common | |
| Alabama default? | No. Must be stated in the deed. | Yes. This is what the law presumes. |
| Ownership shares | Must be equal (50/50, 33/33/33, etc.). | May be unequal (70/30, 80/20). |
| At an owner’s death | Passes automatically to the survivor, generally outside probate. | Passes to the deceased owner’s heirs through probate either via a will or laws of intestate succession. |
| Selling your share | Selling your share automatically breaks the survivorship right, turning it into a tenancy in common. | Freely sold or left to anyone, without the other owner’s permission. |
Not Sure What Your Deed Actually Says?
Too many Alabama families find out what their paperwork really says at the worst possible time. We believe you should understand your own documents while there is still time to change them. Bring us your deeds, account statements, and beneficiary forms, and we will tell you in plain English exactly what happens to each one under Alabama law.We will read your deeds, accounts, and beneficiary forms and tell you exactly what happens to each one under Alabama law, and what it would take to change it if it does not match your wishes.
Three Alabama-Specific Complications With Survivorship Deeds
Survivorship is not the end of the analysis. A few Alabama-specific wrinkles come up often enough that they are worth flagging.
- Alabama recognizes two different kinds of survivorship deed, and only one of them can be broken unilaterally. Under Alabama case law, most notably the Alabama Supreme Court’s decision in Durant v. Hamrick (1981), the language used dictates whether a single owner can destroy the survivorship rights.
- Standard joint tenancy with right of survivorship (destructible). The deed grants property to owners simply “as joint tenants with right of survivorship.” A unilateral sale by one owner breaks the joint tenancy, converting it into a tenancy in common and destroying the survivorship rights for that share.
- Tenancy in common for life with a contingent remainder (indestructible). The deed grants property to owners “as tenants in common for their joint lives, with a remainder to the survivor of them,” or similar dual-concept wording. Alabama courts view this as creating concurrent life estates with a cross-contingent remainder. Because a remainder interest cannot be destroyed by the life tenant, a unilateral transfer does not break the survivorship right. If Owner A sells their share to a third party, and Owner B outlives Owner A, Owner B still takes 100 percent of the property. The buyer gets nothing.
- Creditors can reach an individual owner’s share. A judgment, a bankruptcy, or a tax lien against one co-owner can attach to that owner’s fractional interest. A creditor may, under appropriate circumstances, seek to enforce its rights against the debtor’s ownership interest, which can ultimately result in partition proceedings depending on the nature of the ownership and applicable law.
- Older deeds follow older rules. Alabama’s law on survivorship shifted twice in the mid-twentieth century. Deeds signed between July 15, 1965 and November 9, 1972 fall inside a narrow window in which the Alabama Supreme Court treated survivorship as indestructible, meaning it generally cannot be severed without everyone’s agreement. If your chain of title reaches back that far, the deed needs a closer look than a modern one.
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| Important Warning
If your goal is to keep a jointly held asset out of probate, do not assume the title already accomplishes that. Pull the deed and the account paperwork and confirm the exact wording. If survivorship rights were never created, that asset may still be tied up in probate, even though your family has always thought of it as joint. |
Why Property Titling Can Override Your Will in Alabama
It is natural to assume a will controls everything you own. Jointly held assets frequently do not work that way. A bank account with a payable-on-death (POD) beneficiary designation passes to the named beneficiary outside probate, regardless of what the will provides. Real estate titled with survivorship language behaves the same way. The will never touches either one.
That is why it matters to know, asset by asset, exactly how each thing you own jointly is titled, rather than assuming “joint” means the same thing across your house, your accounts, and your car.
Final Considerations for Alabama Property Owners
Understanding how your property is titled, and how that title interacts with Alabama law, is one of the most overlooked parts of estate planning. Families concentrate on creating the will and assume it covers everything, only to learn later that certain assets were never going to pass under it.
Whether you are planning your estate or helping a loved one organize theirs, the estate planning attorneys at Southern Estate Lawyers can review your current documents, explain how Alabama law applies, and prepare the deeds, wills, trusts, and other estate planning documents needed to ensure your property and wishes are properly protected.
Talk to an Alabama Estate Planning Attorney Near You
Southern Estate Lawyers serves families throughout Alabama from three convenient office locations. Schedule a consultation with a lawyer at the office nearest you:
- Birmingham: 4505 Pine Tree Circle, Suite 121, Birmingham, AL 35243
(205) 990-7000
- Mobile: 6001 Airport Boulevard, Suite 200B, Mobile, AL 36608
(205) 990-7000
- Foley: 901 N McKenzie Street Suite B, Foley, AL 36535
(205) 990-7000
Can’t make it to one of our offices? We offer virtual consultations for clients across Alabama, including those who live out of state but own Alabama property.
Frequently Asked Questions
Read short answers to the questions we hear most often from Alabama clients about jointly owned property, survivorship rights, and probate.
Does jointly owned property go through probate in Alabama?
Generally, no. Property properly held as joint tenants with right of survivorship passes to the surviving owner outside probate. When property is instead held as a tenancy in common, the deceased owner’s interest generally becomes part of the estate and may pass through the Alabama probate process. The exact language in the recorded deed determines how the property is owned.
Does a surviving spouse automatically inherit the house in Alabama?
Not necessarily. Marriage alone does not automatically give a surviving spouse ownership of all property titled in the deceased spouse’s name or jointly owned without survivorship rights. Depending on how the property was titled, the deceased spouse’s interest may pass through probate under a will or Alabama’s intestacy laws. A properly drafted survivorship arrangement can allow jointly owned property to pass automatically to the surviving owner.
How do I know if my Alabama deed has a right of survivorship?
Look at the recorded deed, particularly the language identifying the owners and how they hold title. Phrases such as “joint tenants with right of survivorship” can indicate survivorship rights, but the exact language matters under Alabama law. If the deed is unclear, have an Alabama estate planning attorney review it rather than relying on what family members remember or what a generic form says.
Can I add survivorship rights to an existing Alabama deed?
Yes, in many cases. Current owners can generally change how they hold title by executing and recording a new deed, provided the arrangement complies with Alabama law. The deed must properly establish the intended form of ownership and survivorship rights. Because changing title can have legal, tax, and estate-planning consequences, the deed should be drafted for your specific circumstances rather than copied from a generic form.
What happens if my co-owner dies without a will in Alabama?
If the property was properly held with a right of survivorship, the deceased owner’s interest generally passes automatically to the surviving owner, regardless of whether the deceased had a will. When someone dies without a will in Alabama and no survivorship rights exist, the deceased owner’s interest may pass under the state’s intestacy laws, potentially leaving you as a co-owner with the deceased owner’s spouse, children, or other heirs. Those new co-owners may also have the right to seek partition of the property.
Does a will override a survivorship deed in Alabama?
Generally, no. Property properly held with a right of survivorship generally passes to the surviving owner by operation of law rather than under the deceased owner’s will. The same basic principle applies to assets that pass through valid beneficiary designations, such as certain payable-on-death accounts. This is why a complete estate plan should coordinate deeds, beneficiary designations, wills, and trusts rather than treating the will as the document that controls everything.
