Statutes from before statehood
Idaho Code § 55-508 was enacted in 1864, and § 55-104 in 1887 — both dating to Idaho's territorial era, well before Idaho achieved statehood in 1890. Idaho's own state courts continue to apply these genuinely old statutes today when deciding real, modern disputes over whether a specific deed's language actually created a joint tenancy with survivorship. A recent Idaho Supreme Court case tackled exactly this question: whether a quitclaim deed's wording was sufficient to create the survivorship right, working from these 19th-century statutory foundations.
Clear intent still required
The basic modern rule hasn't changed from what these old statutes established: a deed must clearly express the intent to create a joint tenancy. Without that clear language, Idaho law presumes the co-owners hold the property as tenants in common instead, meaning each owner's share becomes part of their own probate estate rather than passing automatically to the others.
Community property with survivorship, for married couples
Separately, Idaho recognizes community property with right of survivorship, available to married couples. This estate is created by a written grant, transfer, or devise to a husband and wife when expressly declared in the writing to be an estate in community property with right of survivorship. Idaho's own Uniform Probate Code recognizes this arrangement as a nonprobate transfer, letting it pass automatically to the surviving spouse without going through probate.
A relaxed requirement ordinary joint tenancy doesn't get
Here's a genuinely distinctive technical feature: Idaho's community property with survivorship statute doesn't require the same strict unity of title that ordinary joint tenancy traditionally needs. The statute specifically permits this estate to be created by a grant or transfer from a husband and wife — holding title as community property or otherwise — to themselves, or from either spouse to both spouses. In practical terms, married Idaho couples get more flexibility in how they can create survivorship in real estate than unmarried co-owners working under the ordinary joint tenancy statutes do.
Why joint tenancy still matters
Despite community property with survivorship offering married couples this extra flexibility, ordinary joint tenancy with right of survivorship remains genuinely relevant and valid in Idaho, particularly for people who aren't married to one another but still want a straightforward way to pass real property outside of probate.
Medicaid still reaches beyond probate
Property that skips probate through survivorship doesn't necessarily skip Idaho's Medicaid estate recovery reach. Idaho's Medicaid estate recovery statute uses an expanded definition of "estate" that specifically includes survivorship interests, life estates, and living trusts — not just assets that pass through a formal probate proceeding.
No deed-based alternative for real estate that isn't jointly titled
None of this changes the fact that Idaho has no transfer-on-death deed for real estate that isn't already jointly titled this way. See our guide to Idaho's recent attempt to pass a TOD deed law.