ILNews

Property conveyed by the entirety includes presumption of right of survivorship

Back to TopCommentsE-mailPrintBookmark and Share

In a question of first impression, the Indiana Court of Appeals Thursday held that when a property is conveyed by the entirety, there is a presumption the grantor intended to convey the property with the right of survivorship. It does not matter if the individuals are not husband and wife.

Lawrence H. Powell conveyed real estate to his sons Kevin and Gary Powell by means of a warranty deed. It was conveyed to them as “tenants by the entireties.” Gary Powell died in March 2013, and his estate sought a ruling that the title to the real estate was held by the brothers as tenants in common. Kevin Powell counterclaimed, arguing that the deed created a joint tenancy with right of survivorship, meaning he is now the sole owner after his brother’s death.

The trial court ruled in favor of the estate.

Tenancy by the entirety can only exist between a husband and wife under the law, so Lawrence Powell couldn’t convey the land to his sons utilizing this ownership form. The question as to the legal effect of a conveyance of real estate by the entirety to two or more individuals who are not husband and wife is one of first impression in Indiana.

“The Estate’s argument begs the question; the argument’s conclusion is among its premises. That is, the Estate urges us to conclude that Lawrence intended to convey the land to his sons as tenants in common based in large part upon the presumption that such is what he intended to state in the deed when he in fact wrote something entirely different. The Estate compounds the logical fallacy in contending that we should not attempt to ferret out Lawrence’s intent, but instead focus only upon the language used in the deed – while at the same time urging us to disregard what Lawrence actually stated in the deed in favor of the presumption that he intended to state something else. This argument leaves us a bit perplexed, and unconvinced.”

The question in this case is whether the deed’s designation of Kevin and Gary Powell as “tenants by the entireties” manifests an intent to create an estate in joint tenancy. The judges believed that in specifying that Kevin and Gary Powell would take the property as “tenants by the entireties,” Lawrence Powell meant to convey the right of survivorship. The judges then cited cases from other states that have reached a similar conclusion.

“When a property is conveyed to individuals by the entirety or entireties, regardless of whether those individuals are husband and wife, a presumption arises that the grantor intended to convey the property with the right of survivorship,” Judge Ezra Friedlander wrote. “This, in turn, is sufficient to establish the intent to create an estate in joint tenancy with right of survivorship within the meaning of I.C. 32-17-2-1(c)(2).”

The judges remanded with instructions to grant Powell’s motion for summary judgment. The case is G. Kevin Powell v. Estate of Gary Powell, 02A05-1311-CR-584.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT