Joint tenancy is the ownership of real property by two or more co-owners (joint tenants) who have identical interests in the property—and also have a right of survivorship.

A right of survivorship means that upon the death of a joint tenant the property passes directly to the other joint tenant(s), allowing the ownership to be transferred to the surviving joint tenant(s) without going through the probate or court systems. A joint tenancy is sometimes referred to as a joint tenancy with right of survivorship.

This right of survivorship is what distinguishes a joint tenancy from a tenancy in common, in which co-owners hold the property as tenants in common. In some states the right of survivorship must be clearly expressed in the document transferring or conveying the property to the joint tenants, or the tenancy will be presumed to be a tenancy in common.

Laws vary from state to state and in many states the law regarding joint ownership of real property is located in a state’s statutes—although it may also be located in a state’s court opinions (common law or case law).

In South Dakota, joint tenancy is recognized as a form of property co-ownership that includes a right of survivorship. This means that when one of the joint tenants dies, their interest in the property automatically passes to the surviving joint tenant(s) without the need for probate. To create a joint tenancy in South Dakota, the four unities of possession, interest, time, and title must be present, and the intent to create a joint tenancy must be clearly expressed in the deed or conveyance document. If the right of survivorship is not clearly stated, the ownership may be presumed to be a tenancy in common, which does not include the right of survivorship. South Dakota law requires that the conveyance document must explicitly mention the right of survivorship to establish a joint tenancy. It is important for property owners to ensure that their deeds are properly drafted to reflect their intentions regarding the co-ownership of the property. An attorney can provide guidance on how to correctly establish a joint tenancy and ensure that the right of survivorship is effectively created.