O.C.G.A. § 44-6-190 (2019)

Annotations

Cross references. - Presumption of existence of joint tenancy with right of survivorship when share certificates or other securities are issued or transferred to two or more persons in joint tenancy on books or records of corporation, § 14-5-8. Law reviews. - For article arguing for reestablishment of the true joint tenancy with survivorship in Georgia prior to the 1976 amendment to this Code section, see 3

Ga. St. B.J. 29 (1966). For article discussing joint tenancy arrangements as a means of avoiding probate, see 6 Ga. L. Rev. 74 (1971). For article discussing joint ownership of assets and severance of such ownership, see 14 Ga. St. B.J. 14 (1977). For article discussing several aspects of joint tenancy with right of survivorship, see 16 Ga. St. B.J. 54 (1979). For article, ‘‘Joint Bank Accounts: A Different Form of Joint Tenancy,’’ see 17

Ga. St. B.J. 184 (1981). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For note discussing the treatment of joint bank accounts in Georgia, with regard to

survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Eppes v. Locklin, 222 Ga. 86, 149 S.E.2d 148 (1966), see 1 Ga. L. Rev. 331 (1967).

JUDICIAL DECISIONS Common law doctrine abolished by Constitution of 1777. - Common law doctrine of survivorship among joint tenants was abolished by the Constitution of 1777. Lowe v. Brooks, 23 Ga. 325 (1857); Carswell v. Schley, 56 Ga. 101 (1876). See also Bryan v. Averett, 21 Ga. 401, 68 Am. Dec. 464 (1857); Harrison v. Harrison, 105 Ga. 517, 31 S.E. 455, 70 Am. St. R. 60 (1898); Equitable Loan & Sec. Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 97 Am. St. R. 177, 62 L.R.A. 93 (1903). Purpose of Act of 1828. - When the legislature in 1828 interfered with the doctrine of the common law as to survivorship, the language used by the legislature shows that the legislature did so, not as believing the doctrine to be in force, but out of abundant caution lest it might be in force. Lowe v. Brooks, 23 Ga. 325 (1857). Purpose of Act of 1853-54. - Act of 1828 confined itself to estates in ‘‘lands.’’ In 1854, the legislature extended the Act ‘‘to personal estate held in joint tenancy.’’ Lowe v. Brooks, 23 Ga. 325 (1857). Judicial recognition of joint estates. - Although a joint tenancy with right of survivorship was abolished by statute, the Georgia courts continued to recognize such joint estates if expressly created. In 1976, the General Assembly superseded former Code 1933, § 85-1002 with Ga. L. 1976, p. 1388 (see O.C.G.A. § 44-6-190), which recognizes this fact. Barnes v. Mance, 246 Ga. 314, 271 S.E.2d 359 (1980). Creation of right of survivorship prior to 1976. - Prior to 1976, although joint tenancy as it existed at common law was abolished, one could clearly intend by the language in one’s will to create a right of survivorship, which could not be destroyed by severance. The transferees would hold vested life estates with cross contingent remainders. Williams v. Studstill, 251 Ga. 466, 306 S.E.2d 633 (1983). Joint survivorship may be created by deed

to oneself and another. Barnes v. Mance, 246 Ga. 314, 271 S.E.2d 359 (1980). Deed entitled ‘‘Warranty Deed with right of survivorship’’ expressly created such an estate in father and his son, and therefore the land became the son’s at father’s death, and was not part of father’s estate. Barnes v. Mance, 246 Ga. 314, 271 S.E.2d 359 (1980). Enforcement of right of survivorship. - When created by contract, the right of survivorship will be enforced. Commercial Banking Co. v. Spurlock, 238 Ga. 123, 231 S.E.2d 748 (1977). Joint tenancy not terminated by tenant’s incapacity. - Joint tenancies in bank and stock investment accounts and in real property did not terminate as a matter of law when one of the joint tenants was declared incapacitated and a guardian was appointed for that tenant’s person and property. A guardian, unlike a trustee, has no beneficial title in the ward’s estate, but is merely a custodian or manager. Moore v. Self, 222 Ga. App. 71, 473 S.E.2d 507 (1996). Will transfer does not qualify as lifetime transfer to sever joint tenancy. - A will transfers property interests only when the will has been probated after the testator’s death, so a will cannot qualify as an instrument making a lifetime transfer capable of severing a joint tenancy for purposes of O.C.G.A. § 44-6-190(a). Harbin v. Harbin, 261 Ga. App. 244, 582 S.E.2d 131 (2003). Defendant widow was properly granted summary judgment on plaintiff son’s claim to reform certain deeds to two tracts of real property when the son wanted the deeds to reflect the intention of the decedent that the son receive part of the property pursuant to an attempted devise in the decedent’s will. The deeds created a joint tenancy with a right of survivorship in the decedent and the widow in compliance with O.C.G.A. § 44-6-190(a), and, since the will did not qualify as a lifetime transfer of the property

so as to sever the joint tenancy and there was no proof of mutual mistake or unilateral mistake combined with fraud or inequitable conduct to justify reforming the deed in equity, the widow became the sole owner of the property when the decedent died, and the property never became part of the decedent’s estate upon the decedent’s death; the widow’s consent to probate the will did not constitute an admission that the devise was valid. Harbin v. Harbin, 261 Ga. App. 244, 582 S.E.2d 131 (2003). Joint tenancy not severed by execution of deed to secure debt. - Execution of a deed to secure debt by a joint tenant in real property is not such a transfer of all or a part of the grantor’s interest in the property as would sever the joint tenancy with right of survivorship. Biggers v. Crook, 283 Ga. 50, 656 S.E.2d 835 (2008). Deed to secure debt executed by a joint tenant with right of survivorship under O.C.G.A. § 44-6-190 did not sever the joint tenancy. Thus, when a decedent executed a deed to secure debt on property the decedent held jointly with a surviving sibling, and

the security agreement encumbered the decedent’s interest only, the decedent’s death made the sibling the sole owner of the property, and the deed to secure debt was void. Biggers v. Crook, 283 Ga. 50, 656 S.E.2d 835 (2008). Cited in Lee v. State, 62 Ga. App. 556, 8 S.E.2d 706 (1940); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Lee v. State, 64 Ga. App. 290, 13 S.E.2d 79 (1941), commented on in 1 Ga. L. Rev. 331 (1967); Eppes v. Locklin, 222 Ga. 86, 149 S.E.2d 148 (1966); Sams v. McDonald, 117 Ga. App. 336, 160 S.E.2d 594 (1968); Brown v. Five Points Parking Ctr., 121 Ga. App. 819, 175 S.E.2d 901 (1970); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53, 189 S.E.2d 702 (1972); Tri-City Fed. Sav. & Loan Ass’n v. Evans, 132 Ga. App. 735, 209 S.E.2d 20 (1974); Eppes v. Wood, 243 Ga. 835, 257 S.E.2d 259 (1979); State v. Jackson, 197 Ga. App. 619, 399 S.E.2d 88 (1990); Wallace v. Meehan, 162 Bankr. 367 (Bankr. S.D. Ga. 1993); Mathis v. Hammond, 268 Ga. 158, 486 S.E.2d 356 (1997).

RESEARCH REFERENCES Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 1 et seq. C.J.S. - 26A C.J.S., Deeds, §§ 262, 267, 277. 41 C.J.S., Husband and Wife, §§ 39, 40. 86 C.J.S., Tenancy in Common, § 6 et seq. ALR. - Effect on joint estate, community estate, or estate by entireties, of death of both tenants in same disaster, 18 ALR 105. Character of interests of husband and wife in purchase-money mortgage on sale of estate by entireties, 30 ALR 905. Divorce as affecting estate by entireties, 52 ALR 890; 59 ALR 718. Right of survivorship in respect of bank deposit as affected by statutes abolishing joint tenancy and survivorship, 85 ALR 282. Rights and remedies of judgment creditor or of purchaser under execution, in respect of estate in real property held in joint tenancy, 111 ALR 171. Lease to two or more as creating a tenancy in common or a joint tenancy, 113 ALR 573. Right of creditors of one spouse, either before or after death of other spouse, to attack conveyance or encumbrance of estate by entireties by both spouses as in fraud of creditors, 121 ALR 1028.

Statutory lien on interest of joint tenant as severing joint tenancy, 134 ALR 957. Statute relating to joint tenancy in personal property as applicable to choses in action, 144 ALR 1465. Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 ALR 306. Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 ALR 1084. Use of word ‘‘joint’’ or ‘‘jointly’’ in provision of deed other than the granting or habendum clause as indicating intent to create a joint tenancy rather than one in common between the grantees, 157 ALR 566. Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 ALR 969; 75 ALR2d 1172. Gift over to surviving members of a group of share of deceased member as creating absolute interest in last survivor, 166 ALR 1277.

Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy, 1 ALR2d 247. Survivor’s rights to contents of safe-deposit box leased or used jointly with another, 14 ALR2d 948. Transmutation of community funds or property into property held by spouses in joint tenancy, 30 ALR2d 1241. Character of tenancy created by owner’s conveyance to himself and another, or to another alone, of an undivided interest, 44 ALR2d 595. What constitutes a devise or bequest in joint tenancy notwithstanding statute raising a presumption against joint tenancy, 46 ALR2d 523. Estates by entirety in personal property, 64 ALR2d 8; 22 ALR4th 459. What acts by one or more of joint tenants

will sever or terminate the tenancy, 64 ALR2d 918; 39 ALR4th 1068. Construction of devise to persons as joint tenants and expressly to the survivor of them, or to them ‘‘with the right of survivorship,’’ 69 ALR2d 1058. Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons, 32 ALR3d 570. Proceeds or derivatives of real property held by entirety as themselves held by entirety, 22 ALR4th 459. Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 ALR4th 1068. Judgment lien or levy of execution on one joint tenant’s share or interest as severing joint tenancy, 51 ALR4th 906.

ARTICLE 9 UNIFORM STATUTORY RULE AGAINST PERPETUITIES Law reviews. - For article, ‘‘Georgia’s Proposed Dynasty Trust: Giving the Dead

Too Much Control,’’ see 35 Ga. L. Rev. 1 (2000).