Property conveyed by the entirety includes presumption of right of survivorship

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.