A lease with the right to live is a form of co-ownership. Co-owners of joint leases must have equal ownership shares and equal rights to the property, whether it be a bank account, brokerage account, or real estate. If a joint tenant dies, the right to survive means that the co-owner or her owners divide the share equally among her, regardless of her will or the will of the heirs. Disputes over survival are much harder than the test of will.
One point where the right to survive can be debated is whether the co-ownership documents were correctly drafted. The courts argue that joint bank accounts, for example, have no right to survive unless it is specified. If joint tenants do not fill out their paperwork under state law and bank requirements, the court may decide that no evidence of the right to survival exists.
If the document remains the same, the obligation to prove belongs to the challenger the right to survive. The Smarter Dollars website states that the right to survive is superior to wills, domestic partnership agreements, written contracts and will authentication laws for the dead who do not leave wills. Another factor is that the general tenant can drain the bank account or settle the commonly owned property quickly, making the problem acute by putting the property out of reach of the heirs.
Someone planning to challenge the right to survival for a joint-owned bank account can ask the bank or estate enforcer to freeze it until any questions are resolved. Even if both names are in the account and paperwork in order, if it can be shown that the living tenant did not put any money into the account, the court may consider it not a joint lease and distribute the money according to the deceased’s will.
In certain cases, the established right to survival will not come into play. For example, if co-tenants die together in a fire or a car accident, it may not be possible to determine who died first, so the share of each tenant will belong to their respective heirs. If a tenant is found guilty of murdering his co-owner, he cannot benefit from the crime, so the share of the dead person will be transferred to his other co-owners or, if not, to his heirs.