Taxation & Estate Planning

1st DCA: Pending action to partition a joint tenancy with right of survivorship does NOT survive one joint tenant's death

By Juan C. Antúnez

Mercurio v. Headrick, --- So.2d ----, 2008 WL 2434193 (Fla. 1st DCA Jun 18, 2008)

The finality of death is the sort of thing most people can figure out pretty much on their own. Unfortunately, once you walk into the alternate reality of litigation, just because your opponent is dead doesn't mean your case is over.  In the linked-to case the joint owners of a piece of property were suing each other for partition. The twist here is that they owned the property as joint tenants with right of survivorship.  So when one side died, "bingo" the survivor automatically owned the entire property, end of story, game over. Only problem is that the trial court didn't see it that way, so now we have an appellate decision that reiterates property law 101:

The trial court ordered the parties to mediation in September 2006, but they apparently did not reach an agreement over their lingering disputes before Mr. Headrick died in late October. Ms. Mercurio moved for summary judgment on the ground that the joint tenancy remained intact at Mr. Headrick's death, and that she was entitled to an undivided interest in the property as his joint tenant with a right of survivorship. Both the original judge and his successor judge denied Ms. Mercurio's motion, finding that Ms. Mercurio's admissions in her answer signified the parties' mutual intent to partition the property. The successor judge ultimately rendered a final order partitioning the property and directing the parties to sell it at a private sale. Ms. Mercurio appeals that order.

The question in this case is whether a pending action to partition a joint tenancy with right of survivorship survives one joint tenant's death. We hold that such an action does not survive the death of a joint tenant and, accordingly, absent a final judgment of partition at the tenant's death, the action is abated, because the surviving tenant receives full title to the property, consistent with the right of survivorship.

This issue is one of first impression in Florida. Other jurisdictions, however, have confronted the question, and we adopt their common approach which we find persuasive and logical.
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This approach comports with the established and undisputed rule in Florida that only a complete, final conveyance or disposition of jointly held property severs a joint tenancy with right of survivorship.  .  .  .   This case, as many divorce cases, involves a dispute over the disposition of jointly held property. In the case of a joint tenancy, the death of one party resolves that dispute by operation of law.

Full post as published by Florida Probate Litigation Blog on July 03, 2008 (boomark / email).