A conversation with Ruby Steinbrecher, Estate Attorney · The Law Office of Ruby Steinbrecher, Santa Rosa, CA
Buying a Home as an Unmarried Couple in California: Joint Tenancy vs. Tenants in Common
Many of my clients buy a home together before they’re married, and some never marry at all. That’s fine, but there is a caveat.
What trips people up is that the paperwork, meaning how you hold title and what you put in writing, decides what happens if one of you dies or the two of you split up. Two people can pay equal shares and live in the house for years, and still end up with one partner’s family holding a legal claim the other can’t match.
So I asked Ruby Steinbrecher, an estate attorney I work with, what unmarried couples should settle before they buy, not after. Her answer came down to two things. One of them catches people off guard, because it’s the part they think they already got right: how you hold title.
What Unmarried Buyers Should Do Before They Buy
I run into a lot of clients who aren’t married yet, they’re a couple, and they want to buy a house. What situations should they avoid, and what can they take care of up front with an attorney?
It always depends on everyone’s unique situation. Whether they have kids, how much each individual has in assets. There are a lot of factors. But on a general basis, if there are two individuals buying a house together, they want to make sure, number one, that they have a really solid partnership agreement between them that lays out exactly what their arrangement is.
And I suspect you could help them with that.
I could help them with that. Because it covers what happens if something happens to one of the people. They are not there to tell everybody else, hey, this was our agreement. It always needs to be in writing.
That last statement is the one to sit with. The partnership agreement is not for the good years. It exists for the day one of you cannot speak for yourself, and the only voice left in the room is the written document.
The Second Thing: How You Hold Title
The other thing is how you’re holding title. So of course, as an estate planning attorney, I’m going to say each of these individuals needs their own trust, and then the deed is held 50/50 as tenants in common, and they each hold their share in the name of their trust. That way it ensures that their share goes to whomever they choose.
Read that structure carefully, because it is doing three jobs at once. The deed splits ownership into two defined shares. Each share sits inside its owner’s trust. And the trust, not the deed, decides where that share goes.
Joint Tenancy vs. Tenants in Common
Joint tenancy
Both owners hold the property together with a right of survivorship. If one owner dies, the other automatically takes the whole property, with no probate on that first death. It is simple, it is fast, and it overrides whatever your will or trust says about your half.
Tenants in common
Each owner holds a defined share, commonly 50/50, and that share passes to whoever the owner has named. Hold your share inside your own trust and it moves by the terms of that trust, with no probate.
The difference: joint tenancy decides for you. Your share goes to the co-owner automatically, no matter what your will or trust says. Tenants in common lets you name who inherits your share, and because that share sits in your trust, it avoids probate at both deaths, not just the first.
Why Joint Tenancy Is Shortsighted Estate Planning
This is where Ruby said something I had not heard framed this way before. Plenty of unmarried couples choose joint tenancy on purpose, because they want the other person to inherit and they want to skip probate. On its face, that works. Her objection is not that it fails. It is that it only gets you halfway.
Some people, especially if they’re in a partnership and they want the other person to be the heir, a quick and dirty way is to hold it as joint tenants. A deed held as joint tenancy means that if one of the people passes away, the other person automatically inherits, and it does not have to go through probate. But I call that shortsighted estate planning, because we’re still not planning for what happens to the other person. As soon as it’s in that other person’s name, all of it, in just their individual name, if something happens to them, that property is going through probate.
How that plays out:
Two partners own a Sonoma County home as joint tenants. Partner A dies. The house passes to Partner B automatically, no court, exactly as intended. So far, so good.
Now the entire house sits in Partner B’s individual name. Partner B has no trust, because the joint tenancy was the plan. When Partner B dies, there is nothing to catch it. The house goes to probate for its full value, and whoever the couple actually wanted it to land with gets to wait for a court to say so.
Joint tenancy did not solve probate. It postponed it, and made it bigger.
“Be clean in the beginning. Be very clean in the beginning.”
If You Still Want to Keep It Simple
Ruby is not telling anyone that joint tenancy is forbidden. She is telling you to know what you are choosing.
Even if you go into it and you want to own property together and you want to just keep it simple and do joint tenancy, as long as you understand the pitfalls, that somebody could still end up going through probate. But at the very least, have that partnership agreement between you that shows who was responsible for the down payment, who was responsible for taxes and maintenance and upkeep. All of those details are very important.
What Belongs in the Partnership Agreement
Straight from Ruby’s list, plus the questions that come up constantly on my side of the transaction:
- Who paid the down payment, and in what proportion. This is the single most common source of conflict, and memory is not evidence.
- Who pays the mortgage, taxes, insurance, and upkeep, and what happens when those splits are uneven.
- How improvements are credited. One partner funds a new roof. Does that change the split?
- What happens if you separate. Who has the right to buy the other out, at what price, and on what timeline.
- What happens if one of you dies. Which is exactly what the title vesting and the trusts are there to answer.
Where This Touches the Loan
My side of it is short, and it is mostly about timing.
Vesting gets set on the deed at closing. Changing it afterward means a new deed, recorded separately, and it is worth having an attorney or title company handle that rather than discovering later that the form got filled in by whoever was fastest at the signing table. Escrow will ask how you want to hold title. That question tends to arrive late, in a stack of other questions, when you are tired. It deserves a better answer than the one you improvise on the spot.
So tell me early. If you are buying with a partner and you are not married, say so at the front of the loan, and get Ruby or another estate attorney into the conversation while the deal is still being built rather than after it has funded.
The Bottom Line
Ruby said something at the end of our conversation that I keep repeating:
So many people walk around with misconceptions about things, not really understanding things completely, and then basing really big decisions on those misconceptions. That can land your friends and family in court and in conflict. That’s what we want to avoid.
Buying a house with someone you are not married to is not risky. Buying one without writing anything down is. The agreement and the vesting cost a fraction of what a probate costs, and roughly nothing compared to what a fight between two families costs.
I am not an attorney and I do not give legal advice. What I can tell you is when to ask, and the answer is now, while you are still shopping. If you want an introduction to Ruby, call me.
About Ruby Steinbrecher
Ruby Steinbrecher is an estate attorney based in Santa Rosa, California, specializing in estate planning, trust administration, and inherited property law. Her office serves clients throughout Sonoma County and the greater Bay Area. Learn more at The Law Office of Ruby Steinbrecher.
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CJ Kerls NMLS #243438 · Rate NMLS #2611 · CA DRE #01320626. Licensed in 29 states. This content is for informational purposes only and does not constitute legal, tax, or financial advice, nor a commitment to lend. Title vesting, partnership agreements, and estate planning carry consequences that depend on your individual circumstances. Consult a qualified estate planning attorney before deciding how to hold title. Loan approval is subject to credit and underwriting review. Not all applicants will qualify. Equal Housing Lender.