GA Code § 44-6-190 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 8 - Joint Tenancy With Survivorship|§ 44-6-190. Creating Joint Tenancy With Survivorship; Severance; Effect of Code Section on Other Laws

    Deeds and other instruments of title, including any instrument in which one person conveys to himself or herself and one or more other persons, any instrument in which two or more persons convey to themselves or to themselves and another or others, and wills, taking effect after January 1, 1977, may create a joint interest with survivorship in two or more persons.   Any instrument of title in favor of two or more persons shall be construed to create interests in common without survivorship between or among the owners unless the instrument expressly refers to the takers as "joint tenants," "joint tenants and not as tenants in common," or "joint tenants with survivorship" or as taking "jointly with survivorship."   Any instrument of title using one of the forms of expression referred to in paragraph (2) of this subsection or language essentially the same as one of these forms of expression shall create a joint tenancy estate or interest that may be severed as to the interest of any owner by the recording of an instrument which results in his or her lifetime transfer of all or a part of his or her interest; provided, however, that, if all persons owning joint tenant interests in a property join in the same recorded lifetime transfer, no severance shall occur.   Unless the joint tenancy with the right of survivorship is otherwise disposed of in a final order of divorce or annulment, if either party to an instrument of title creating a joint tenancy with the right of survivorship files an affidavit in the real property records maintained by the clerk of superior court of the county in which the real property is located averring that the parties have been lawfully divorced or their marriage has been annulled that the party intends to terminate the joint tenancy, identifies the book and page of recordation of the deed creating the joint tenancy and attaches a copy of the final order of divorce or annulment and a legal description of the property, the party's interests shall be converted into tenants in common.     Neither this Code section nor Code Section 44-6-120 shall:   Be construed to repeal, modify, or limit in any way:   Code Section 14-5-8; or   Article 8 of Chapter 1 of Title 7 or any other law relative to multiple-party accounts in financial institutions; or     Apply to any document, transaction, or right to which Code Section 14-5-8 applies or to multiple-party deposit accounts in any financial institution.      (Laws 1828, Cobb's 1851 Digest, p. 545; Ga. L. 1853-54, p. 70, § 1; Code 1863, § 2281; Code 1868, § 2274; Code 1873, § 2300; Code 1882, § 2300; Civil Code 1895, § 3142; Civil Code 1910, § 3722; Code 1933, § 85-1002; Ga. L. 1976, p. 1388, § 10; Ga. L. 1976, p. 1438, § 2; Ga. L. 1980, p. 753, § 2; Ga. L. 1984, p. 1335, § 2; Ga. L. 1985, p. 149, § 44; Ga. L. 2015, p. 827, § 1/HB 99.)    The 2015 amendment,  effective July 1, 2015, rewrote this Code section.   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 annual survey on real property, see 64 Mercer L. Rev. 255 (2012). 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).   Quitclaim deed qualifies as lifetime transfer to sever joint tenancy.    - Superior court erred in granting the defendant's motion to dismiss the plaintiff's petition for an equitable partition of real property and an accounting because the property was not held by the parties as joint tenants with the right of survivorship at the time of the petition as the plaintiff's 2007 quitclaim deed to another individual was a transfer in the plaintiff's lifetime of all of the plaintiff's interest in the property, although the plaintiff quickly received the property back again from the other individual, because, when the other individual received a grant of the plaintiff's interest in the property by virtue of the quitclaim deed, it was the other individual's property to do with as the other individual wished. Reed v. McConathy, 299 Ga. 471, 788 S.E.2d 769 (2016).   Severance of joint tenacy to allow partition of property.    - When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637, 805 S.E.2d 817 (2017).   Statute inapplicable when deed not conveying interest to two or more persons.    - Deed conveyed a life estate to a widow and a decedent as tenants in common in compliance with O.C.G.A. § 44-6-190, but the deed conveyed the estate in remainder to only one person, either the widow or the decedent, whoever survived the other, and because the deed did not convey that interest in the property to two or more persons, § 44-6-190 did not apply. Greene v. Greene, 311 Ga. App. 132, 714 S.E.2d 650 (2011).    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 A.L.R. 105.    Character of interests of husband and wife in purchase-money mortgage on sale of estate by entireties, 30 A.L.R. 905.    Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718.    Right of survivorship in respect of bank deposit as affected by statutes abolishing joint tenancy and survivorship, 85 A.L.R. 282.    Rights and remedies of judgment creditor or of purchaser under execution, in respect of estate in real property held in joint tenancy, 111 A.L.R. 171.    Lease to two or more as creating a tenancy in common or a joint tenancy, 113 A.L.R. 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 A.L.R. 1028.    Statutory lien on interest of joint tenant as severing joint tenancy, 134 A.L.R. 957.    Statute relating to joint tenancy in personal property as applicable to choses in action, 144 A.L.R. 1465.    Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 A.L.R. 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 A.L.R. 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 A.L.R. 566.    Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969; 75 A.L.R.2d 1172.    Gift over to surviving members of a group of share of deceased member as creating absolute interest in last survivor, 166 A.L.R. 1277.   Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy, 1 A.L.R.2d 247.   Survivor's rights to contents of safe-deposit box leased or used jointly with another, 14 A.L.R.2d 948.   Transmutation of community funds or property into property held by spouses in joint tenancy, 30 A.L.R.2d 1241.   Character of tenancy created by owner's conveyance to himself and another, or to another alone, of an undivided interest, 44 A.L.R.2d 595.   What constitutes a devise or bequest in joint tenancy notwithstanding statute raising a presumption against joint tenancy, 46 A.L.R.2d 523.   Estates by entirety in personal property, 64 A.L.R.2d 8; 22 A.L.R.4th 459.   What acts by one or more of joint tenants will sever or terminate the tenancy, 64 A.L.R.2d 918; 39 A.L.R.4th 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 A.L.R.2d 1058.   Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons, 32 A.L.R.3d 570.   Proceeds or derivatives of real property held by entirety as themselves held by entirety, 22 A.L.R.4th 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 A.L.R.4th 1068.   Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.