Tax Trap of Joint Tenant Ownership & Disadvantage of Community Property - The Easy Solution
Married couples in Arizona who title their home or investment assets as Joint Tenants with Right of Survivorship (JTWROS) lose the benefit of “step-up-in-basis.” If ownership is just husband and wife (as Community Property) you get the step up in basis, HOWEVER, half will probably have to be probated on the first to die – you do not want that!
Ariz. Rev. Stat. § 33-431 requires the proper title wording, "community property with right of survivorship.” Same in California and Nevada, but Alaska and Wisconsin require different wording.
With joint tenant assets, when you die, your spouse only gets a 50% step-up in basis.
But if you title assets as Community Property with Right of Survivorship (CPWROS) upon the first to die, the surviving spouse gets 100% tax-free step-up in basis avoiding any taxable gain on future sales.
For example, You have investments worth $200,000 with a tax basis (your cost) of $100,000. When you die your spouse sells the assets for $200,000. If held as joint tenants, the spouse would have to pay taxes on half the gain - $50,000. By contrast, if held as Community Property with Right of Survivorship the spouse would have ZERO gain to pay taxes on!
On your personal residence, you may qualify for the $500,000 capital gain exclusion for married couples. But in order to get the $500,000 home exclusion the surviving spouse has to sell the property in the year of the death, otherwise, the exclusion is $250,000, the same as for single people.
But there is no exclusion for investments, so it is even more important to consider holding investments as CPWROS. Unless they decline in value!
Of the nine states that are community property states only five - including Arizona - recognize the title of CPWROS.
Since only a few states have CPWROS not all brokerage firms are set up to allow this title on accounts. We can open an investment account with this title.
Obviously, if you have separate assets before marriage and have kept them segregated you would not want to have them in either a joint or CPWROS account since they would lose their separate status.
Assets held in a Living Trust avoid the taxation problem. You can not take advantage of this tilting in retirement plans, IRA’s or annuities since they have direct beneficiaries and different tax rules.
If the spouse that is likely to die first has possible judgments pending you may not want to use CPWROS, since these assets can be attached by creditors of the deceased spouse.
CPWROS can only be used for married couples. If you do not have a spouse, Arizona Beneficiary Deeds for real estate enjoy a 100% step-up in basis vs. only 50% if you own it with another heir as joint tenants. For single people on non-real estate assets, you can use “Transfer on Death” titling to avoid probate.
CPWROS status can be created without the need for a "straw person," which is required with Joint Tenancy deeds with rights of survivorship, and the right of survivorship can be terminated by the recording of an affidavit if you change your mind.
With the large decline in Arizona real estate values in the last few years, some folks may not have gains but losses if they bought before the decline! You cannot deduct losses on homes, just the gains are taxed. If you think a spouse is likely to die before you are back to a gain position, you may wish to reverse course and title as JTWROS since the tax basis value is determined at the date of death (or six month alternative date) – so you wound what to avoid a step-down in basis upon death!
This may also apply to investment assets after the 2007-2008 declines, however with the strong market recovery over the last few years this is less of a concern. In early 2013, gold has reached new recent lows… it gets very complicated and a crystal ball is needed. However, historically most assets have had gains, so then you want to use CPWROS both for tax savings and to avoid probate.
Another Danger of Joint Tenancy: Can Transfer Without Consent of Joint Tenant
Of course, your spouse would never do this… but it does happen.
A spouse has an affair and unknown to the other spouse, he (let’s assume it is the husband) secretly gave his mistress a deed to the house or transfers other jointly held assets to her.
Guess what? The wife now owns the assets with the mistress! (Probably not what either desired.)
With joint tenancy, any owner can transfer his interest without the knowledge or consent of the other joint owner. He can only transfer his 50% interest, so the wife and the mistress now own the home or other assets as tenants in common.
If the assets were held as CPROS, both spouses must consent to any transfer of interests.
The above is for informational purposes only concerning titling of assets and is not intended as definitive legal or tax advice. You should not act upon this information without seeking independent legal counsel. If you desire legal, tax or other professional advice, please contact your attorney or qualified tax advisor.
Ariz. Rev. Stat. § 33-431