Joint Tenancy vs. Tenancy in Common: Kentucky Real Estate Ownership Explained
How you hold title to real property in Kentucky matters more than most people realize. The form of co-ownership you choose — joint tenancy or tenancy in common — determines what happens to your share when you die, whether your co-owner can sell or encumber their share without your consent, and how creditors can reach the property. Getting this right at the outset can prevent costly disputes and unintended consequences down the road.
Tenancy in Common: The Default in Kentucky
In Kentucky, when two or more people own property together, the law presumes they hold title as tenants in common unless the deed clearly states otherwise. Under KRS 381.050, every interest in real property granted or devised to two or more persons (other than as executors or trustees) is deemed a tenancy in common, unless the instrument expressly creates a joint tenancy or a tenancy by the entireties.
In a tenancy in common, each owner holds a separate, undivided interest in the property. Those interests can be equal or unequal — one owner might hold a 60% interest and the other a 40% interest. Each tenant in common can sell, mortgage, or transfer their share without the consent of the other owners. And critically, when a tenant in common dies, their interest passes through their estate — either under their will or, if they have no will, under Kentucky’s intestacy laws. It does not automatically pass to the surviving co-owners.
Joint Tenancy: The Right of Survivorship
A joint tenancy includes a right of survivorship, which means that when one joint tenant dies, their interest automatically passes to the surviving joint tenant(s) — outside of probate. This is the key distinguishing feature. Joint tenancy avoids the need for the deceased owner’s share to go through the probate process, which can save time and expense.
Because Kentucky’s default is tenancy in common, creating a joint tenancy requires explicit language in the deed. The deed must clearly state that the grantees take title as “joint tenants with right of survivorship” or use equivalent language that leaves no ambiguity about the intent to create a survivorship interest. Kentucky courts have been strict about this requirement — vague or ambiguous language will be construed as creating a tenancy in common.
The Four Unities
At common law, a joint tenancy required four “unities” — unity of time, title, interest, and possession. This meant all joint tenants had to acquire their interests at the same time, through the same instrument, in equal shares, and with equal rights of possession. If any unity was broken — for example, if one joint tenant sold their interest to a third party — the joint tenancy was severed and converted to a tenancy in common.
Kentucky has largely followed these principles, though modern practice allows some flexibility in how joint tenancies are created. The key takeaway is that selling or transferring a joint tenant’s interest to a third party can destroy the joint tenancy and eliminate the right of survivorship.
Tenancy by the Entireties
Kentucky also recognizes a third form of co-ownership: tenancy by the entireties, which is available only to married couples. This form of ownership includes a right of survivorship (like joint tenancy) and additionally provides protection from creditors of only one spouse — a creditor who has a judgment against only one spouse generally cannot force a sale of entireties property to satisfy the debt. This creditor protection makes tenancy by the entireties a valuable planning tool for married couples in Kentucky.
Practical Considerations
Choosing between these forms of ownership has real consequences. If you want your share of property to pass to your co-owner automatically at death — avoiding probate — joint tenancy or tenancy by the entireties is the right choice. If you want your share to pass to your heirs (such as your children from a prior marriage) rather than your co-owner, tenancy in common preserves that option.
Business partners who purchase property together should generally use tenancy in common, so each partner’s interest can be passed to their own heirs or sold independently. Married couples frequently use tenancy by the entireties for the survivorship and creditor-protection benefits. Unmarried couples or family members purchasing property together should carefully consider which form of ownership best matches their intentions.
Partition Actions
If co-owners disagree about what to do with jointly owned property, Kentucky law provides a remedy through a partition action under KRS Chapter 381. Any co-owner (whether joint tenant or tenant in common) can petition the court to divide the property physically (partition in kind) or to sell it and divide the proceeds (partition by sale). Partition actions are available as a matter of right — you do not need the other co-owner’s consent.
Review Your Deed
If you own real property with someone else in Kentucky, it is worth reviewing your deed to confirm how title is held. If the form of ownership does not match your intentions — particularly regarding what happens to your share at death — it may be time to execute a new deed.
Buckles Law Office handles real property matters and estate planning in Central Kentucky. Call (859) 225-9540 to review your ownership situation.
