Indestructible Survivorship or Destructible Survivorship: Which Form of Survivorship Is Best for Your Client?, 0117 ALBJ, 78 The Alabama Lawyer 40 (2017)

Author:By Sam W. Irby
Position:Vol. 78 1 Pg. 40
 
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Indestructible Survivorship or Destructible Survivorship: Which Form of Survivorship Is Best for Your Client?

Vol. 78 No. 1 Pg. 40

Alabama Bar Lawyer

January, 2017

By Sam W. Irby

It is common for a client to ask a lawyer to prepare a deed conveying real property to the client and his or her spouse in what the client calls “with right of survivorship.” If the lawyer asks the client what the client means by “with right of survivorship,” the client may often respond by saying, “When I die, I want my spouse to inherit automatically, without the need to probate.” Alabama lawyers should be aware that preparing a deed to two or more individuals with so-called “right of survivorship” is much more complex than the client may realize. It is important that the lawyer discuss the issues with his or her client and advise the client regarding the different types of survivorship recognized by Alabama law and the effect that the different types may have on the rights of the owners of the real property.

In March 1983, Robert P. Denniston published an excellent article in The Alabama Lawyer.1 In his article, Mr. Denniston discussed the law in Alabama concerning the complex issues pertaining to indestructible and destructible survivorship of real property. The purpose of this article is to revisit some of the history of Alabama law pertaining to survivorship and to discuss the key issues in advising a client on what form of survivorship is best for the client to use in a deed.

What Is Survivorship?

Joint tenancy at common law was a form of ownership providing that a deed or conveyance to two or more people as joint tenants, if drafted properly, resulted in each joint tenant being seized of a share of the ownership of the property while at the same time each owning the whole. The joint tenants shared rights in the real property during their lives and upon the death of one of them, the interest of the deceased joint tenant terminated without the need to probate.[2] The interest in the property of a deceased person ceases upon his or her death.3 When title is taken by two or more people as joint tenants with rights of survivorship, each joint tenant owns an undivided one-half interest for life while at the same time a contingent remainder in the whole, and the interest in the property of a deceased person ceases upon his or her death. The Fretwell court held that when title is held as joint tenants with rights of survivorship, the surviving joint tenant becomes the absolute owner of the property upon the death of the co-tenant, because, by virtue of the deed, the survivor does not acquire title through the deceased.4 The property described in a deed to joint tenants with rights of survivorship will become the property of the survivor upon the death of one of the joint tenants.5

What Is Tenancy in Common?

Tenancy in common at common law was generally described as an ownership by two or more persons, in equal or unequal undivided shares, with each person having an equal right to present possession of the whole property.6 Tenants in common share a single unity of possession and if the single unity of possession does not exist, the estate is not a tenancy in common.7 Each tenant in common has a separate undivided interest with the other tenants in common.8 Tenants in common are not considered to own the entirety of a parcel; rather each tenant in common owns an undivided part of the parcel. Each tenant in common has the right to convey or encumber his or her interest without the consent or approval of the other tenants in common.9 Upon the death of one of the tenants in common, there is no right of survivorship in the surviving tenants in common. The interest of the deceased tenant in common descends to the beneficiaries under his or her will or by the laws of intestacy without affecting the ownership interests of the other tenants in common.

Early Alabama Case Law

At English common law, when a deed conveyed to two or more persons as joint tenants there was a presumption of joint tenancy with right of survivorship.10 To create a joint tenancy with right of survivorship, four unities of title had to be present, namely, the unities of time, title, interest and possession. Any event that destroyed one of these unities destroyed the joint tenancy.11 All joint tenants must have taken title by the same instrument, at the same time, with the same share and all joint tenants would have the same undivided right of possession to the property.[12] If these four unities of title were present, a joint tenancy with right of survivorship and not tenancy in common was presumed, and it was not necessary to express intent to create survivorship.13 For example, at English common law, a deed from a grantor to a grantee reciting that the deed was intended to create a joint tenancy between them would not have the element of unity of time and, therefore, would not have created a joint tenancy with right of survivorship.

Under earlier Alabama case law, a joint tenancy could be destroyed by the conveyance of the interest of one of the joint tenants.14 Following the creation of a joint tenancy, any subsequent conveyance by one of the joint tenants would destroy the joint tenancy and a tenancy in common would result.15

The common law presumption of joint tenancy was abolished in Alabama. The original version of the law, now codified as Ala. Code, §35-4-7 provided that, when one joint tenant dies, his or her interest does not survive to the other joint tenants. In 1945, the statute was amended to provide that this statutory presumption favoring tenancies in common can be overcome by clear language in a deed that a right of survivorship is intended. For a discussion of the history of the law in Alabama pertaining to join tenancies and tenancies in common, see Durant and the 1983 article by Robert P. Denniston.16

The courts in Alabama have ruled that unity of time is no longer required in order to create a joint tenancy.[17] Therefore, a deed by a grantor to a grantee which clearly expresses an intention to create joint tenancy with right of survivorship in the grantor and grantee is now sufficient to create joint tenancy with right of survivorship. The Germaine court stated that Ala. Code, §35-4-7 requires the intent of survivorship to be expressed in the instrument of conveyance and eliminated the common law requirement of unity of time.

1983 Robert P. Denniston Article

In his 1983 Alabama Lawyer article, Robert Dennis-ton discussed the issues and cases pertaining to “destructible” and “indestructible” survivorship. Mr. Denniston brought to the attention of the bar the cases of Bernhard v. Bernhard, Nunn v. Keith and Durant v. Hamrick.[18]

In the Bernhard case, a husband and wife took title to property as joint tenants with right of survivorship. The husband filed a bill seeking to have the property sold for division. The Bernhard court stated that the sole question to be decided was whether property held under a joint tenancy with right of survivorship may be sold for division at the insistence of one of the tenants over the objection of the other. The Bernhard court further stated that joint tenancies as known to the common law have been abolished by statute, but that if survivorship is clearly stated as an incident to the estate of tenancy in common, then a right of survivorship is allowed. The Bernhard court ruled that the parties had intended to create a tenancy in common with right of survivorship, with each party owning an undivided one-half interest for life, plus the right in the survivor to own the entire interest by way of contingent remainder. The Bernhard court further ruled that there can be no sale for division over the objection of one tenant during their joint lives and that a division may be had only with the consent of all grantees.

In the Nunn case, a husband and wife conveyed real property to themselves and their grandson as joint tenants with right of survivorship. The wife died and the husband remarried. The husband and his new spouse conveyed a one-half undivided interest in the real property to themselves for their joint lives with the remainder to the survivor. The Nunn court stated that the question before it involved the determination of the type of estate was created by the 1949 deed. The Nunn court overruled Bernhard and stated that Ala. Code...

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