How a survivorship tenancy is created
Ohio does not presume survivorship. R.C. 5302.17 sets out a statutory deed form, and a deed to two or more people that substantially follows that form creates a survivorship tenancy. The key words in practice are “for their joint lives, remainder to the survivor of them.” When one owner dies, that owner’s interest passes to the surviving owner or owners.
Deeds that only name two people, or say “joint tenants” without survivorship wording, usually make the owners tenants in common. A tenant in common’s share does not pass to the co-owner. It goes into the deceased owner’s probate estate, and the probate sale guide applies to that share.
Pull the recorded deed from the county recorder before assuming anything. The wording is what controls, not what the family remembers the owners intending, and not how the tax bill lists the names. Older Ohio deeds sometimes say “tenancy by the entireties,” which Summit County’s survivor affidavit form also recognizes.
Recording the death: affidavit or certificate
The survivor already owns the whole house, but the public record still shows two names. R.C. 5302.17 gives two ways to fix that:
- Affidavit with a death certificate. The affidavit recites the names and addresses of the surviving tenants, the date of death and a description of the property. A certified copy of the death certificate is attached. It is presented to the county auditor or fiscal office and filed with the county recorder.
- Certificate of transfer. A probate court certificate under R.C. 2113.61, which is more work and is mostly used when an estate is already open. See the certificate of transfer guide.
Summit County’s Fiscal Office publishes a one-page form for the affidavit route, the Affidavit Naming Surviving Spouse or Joint Survivor under R.C. 5302.17. It asks for the parcel number, the volume and page or reception number of the original survivorship deed, whether the land is registered, the date of death and the name of the surviving owner, and it is signed before a notary. Other counties’ auditors keep similar forms.
What changes, and what doesn’t, when a co-owner dies
The survivor takes the house, but some things stay attached to it:
- The mortgage stays. If the deceased owner signed the mortgage, it is still a lien on the house. Federal law, 12 U.S.C. 1701j-3(d)(3), bars the lender from calling the loan due because of a transfer on the death of a joint tenant. See what happens to a mortgage when the owner dies.
- Medicaid recovery can reach it. Ohio Administrative Code 5160:1-2-07 counts property passing by survivorship as part of the estate for Medicaid recovery. Recovery is deferred while a surviving spouse is alive, and while there is a surviving child under 21, or a child who is blind or permanently and totally disabled.
- The tax basis changes, partly. The next section explains how.
How the basis works for a survivor
The survivor’s tax basis depends on who contributed to the purchase and whether the owners were married. IRS Publication 551 covers both cases:
| Owners | Basis after one owner dies |
|---|---|
| Married couple, only joint tenants | Survivor’s half at cost, plus the inherited half at its fair market value on the date of death |
| Unmarried co-owners | Survivor’s own contribution at cost, plus the share included in the decedent’s estate at date-of-death value |
Publication 551’s example: two co-owners bought for $30,000, one paid two-thirds, and the property was worth $60,000 at the death. The survivor’s basis started at $10,000 for the third they bought plus $40,000 for the two-thirds inherited, before a depreciation adjustment. A tax professional should run your own numbers, and the inherited house capital gains guide explains the full stepped-up rule.
Problems that show up in older survivorship deeds
Survivorship deeds signed decades ago can hide surprises. Watch for these:
- Both owners have died. The last survivor owned the whole house, so it passes through that person’s estate, or by any transfer on death designation they recorded.
- The survivor never recorded the first death. The affidavit can be recorded years later, but it must be done before the survivor sells, and the death certificate is still required.
- A former spouse is still on the deed. A divorce decree doesn’t change the recorded deed by itself. Ask the title company what it needs.
- The deed lacks survivorship wording. Then it isn’t a survivorship tenancy at all, and the deceased owner’s share goes through probate.
Pulling the deed from the recorder’s online index, or asking a title company for a search, sorts these out before you plan a sale.
Selling after the affidavit is recorded
Once the affidavit is on record, the survivor sells as the sole owner. The title company will want the recorded affidavit or certificate, the death certificate, and a payoff on any mortgage. If the deceased owner’s name is still on the homeowner’s insurance policy or the utility accounts, update those too, so the policy is in force through closing.
A survivorship deed is only as good as the last survivor’s plan. When the last owner dies, the house is in their name alone, and unless they added a transfer on death designation, it goes through probate. A surviving spouse thinking about what to do with the house can read our page on selling after a spouse dies. Your title company or an Ohio real estate attorney can confirm the deed’s wording before you file anything.
