Affidavit of Surviving Joint Tenant Title-Clearance Requirements in Colorado

At a glance

Requirements one by one

The joint tenancy must already exist

C.R.S. § 38-31-101(1) generally requires the deed or will to declare that the property is held “in joint tenancy,” “as joint tenants,” or with equivalent JTWROS language. Subsection (6)(c) then supplies the death effect: the deceased joint tenant's interest terminates, and the survivor's interest continues free of it.

Colorado does not create tenancy by the entirety. Under § 38-31-201, a Colorado instrument that purports to create that ownership form is instead treated as joint tenancy—presumptively for a pre-July 2006 instrument and directly for a later one. The death-proof filing does not cure other missing joint-tenancy language or decide whether the ownership was severed before death.

Primary route: death record plus supplementary affidavit

Under § 38-31-102, the recorded package may use an original death certificate, a verification-of-death document, or a certified copy. It is recorded together with a supplementary affidavit from one person of legal age who has personal knowledge of the facts. The signer need not be the surviving joint tenant.

The affidavit must give the property's legal description. It must also state that the person identified in the death record is the same person named in a specific recorded deed or similar instrument that created the joint tenancy. The statute does not require the survivor's identity, deed date, reception number, tax status, lien status, or a no-severance declaration as part of this statewide affidavit.

Fallback route: two disinterested affiants

Section 38-31-103 applies only if a death certificate, verification-of-death document, or certified copy cannot be procured. The substitute is one affidavit sworn or affirmed by at least two people of legal age. Each must know the facts and must have no record interest in the affected real property.

That affidavit states that the death record cannot be procured and explains why. It also gives the legal description, the decedent's date and place of death, and a statement that the decedent owned a joint-tenancy interest in the property at death.

Oath, office, timing, and effect

Both affidavits must be properly sworn to or affirmed. The operative sections do not prescribe subscribing witnesses beyond the fallback route's requirement that two or more qualified people make the affidavit.

Record with the county clerk and recorder for the county where the property is located. Sections 38-31-102 and 38-31-103 state no post-death filing deadline.

The primary package is accepted in Colorado courts as prima-facie proof of the joint tenant's death. The fallback affidavit is prima-facie proof of death and its date and place. Section 38-35-112 confirms that the statutory death-record method is not exclusive. None of these provisions calls the filing a deed or makes it conclusive proof that the creating instrument was valid and unsevered.

Documentary-fee claim, but no transfer declaration

C.R.S. § 39-13-104(1)(m) exempts a document needed to transfer title as a result of an owner's death from Colorado's documentary fee. Subsection (2) requires the exemption to be claimed when the instrument is offered for recording.

The Real Property Transfer Declaration is not a statewide companion to this death-proof package. Sections 39-14-101 and 39-14-102 require the declaration for a “conveyance document,” defined as a document on which the documentary fee is imposed. The death-transfer document is fee-exempt under § 39-13-104.

What trips people up

The fallback is not a one-affiant substitute. Once no qualifying death record can be procured, § 38-31-103 requires at least two knowledgeable people with no record interest, plus the reason the record is unavailable.

A certified death certificate is not the only primary evidence. Section 38-31-102 also permits an original certificate of death or a verification-of-death document. A packet that allows only a certified death certificate is narrower than the statute.

Recording proves death; death ends the interest. Section 38-31-101(6)(c) terminates the deceased tenant's interest at death. Sections 38-31-102 and 38-31-103 give the recorded materials prima-facie evidentiary effect.

False swearing has a specific consequence. Section 38-31-104 makes false swearing or affirming under either affidavit second-degree perjury and also creates liability for resulting loss.

Common questions

What if the deed says “tenancy by the entirety”? Colorado does not create that estate. Section 38-31-201 treats the attempted form as joint tenancy under its pre- and post-July 2006 rules.

Can the filing cure a deed that never created joint tenancy? No. The proof-of- death statutes start with an existing joint-tenancy or other death-terminable recorded interest; they do not repair the creating instrument.

Can this procedure document another death-terminable interest? Yes. Section 38-31-102 expressly includes a life tenant, a beneficiary-deed owner, and any other person whose recorded real-property interest terminates at death. Section 38-31-103 similarly covers a life tenant or another such person when death evidence is unavailable.

Is this the only lawful way to prove death? No. Section 38-35-112 expressly says the statutory death-record method is not exclusive and preserves other proof authorized by law.

Statutes and sources

• C.R.S. §§ 38-31-101 and 38-31-201 — joint-tenancy creation and death effect; treatment of attempted tenancy by the entirety. https://olls.info/crs/crs2025-title-38.pdf (accessed 2026-08-03).
• C.R.S. §§ 38-31-100.3 and 38-31-102 to -104 — qualifying death evidence, primary and fallback affidavits, contents, affiants, evidentiary effect, and false swearing. https://olls.info/crs/crs2025-title-38.pdf (accessed 2026-08-03).
• C.R.S. § 38-35-112 — death-record evidence and nonexclusive proof. https://olls.info/crs/crs2025-title-38.pdf (accessed 2026-08-03).
• C.R.S. §§ 39-13-104 and 39-14-101 to -102 — death-transfer documentary-fee exemption, exemption claim, and Real Property Transfer Declaration scope. https://olls.info/crs/crs2025-title-39.pdf (accessed 2026-08-03).