K.S.A. 58-501 Tenancy in common unless joint tenancy intended, when; exception; joint tenancy provisions.
58-501. Tenancy in common unless joint tenancy intended, when; exception; joint tenancy provisions.
Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: Except, That a grant or devise to executors or trustees, as such, shall create in them a joint tenancy unless the grant or devise expressly declares otherwise. Where joint tenancy is intended as above provided it may be created by:
(a) Transfer to persons as joint tenants from an owner or a joint owner to himself or herself and one or more persons as joint tenants;
(b) from tenants in common to themselves as joint tenants; or
(c) by coparceners in voluntary partition to themselves as joint tenant.
Where a deed, transfer or conveyance grants an estate in joint tenancy in the granting clause thereof and such deed, transfer, or conveyance has a hebendum clause inconsistent therewith, the granting clause shall control. When a joint tenant dies, a certified copy of letters testamentary or of administration, or where the estate is not probated or administered a certificate establishing such death issued by the proper federal, state or local official authorized to issue such certificate, or an affidavit of death from some responsible person who knows the facts, shall constitute prima facie evidence of such death and in cases where real property is involved such certificate or affidavit shall be recorded in the office of the register of deeds in the county where the land is situated. The provisions of this act shall apply to all estates in joint tenancy in either real or personal property heretofore or hereafter created and nothing herein contained shall prevent execution, levy and sale of the interest of a judgment debtor in such estates and such sale shall constitute a severance.
L. 1939, ch. 181, § 1; L. 1955, ch. 271, § 1; June 30.
Law Review and Bar Journal References:
Creation without third party prior to 1955 amendment discussed, Joseph W. Morris, 15 J.B.A.K. 241, 243 (1947).
Procedure for termination discussed, J. G. Somers, 1952 J.C.B. 78.
Disadvantages of jointly owned property, James D. Dye, 21 J.B.A.K. 351 (1953).
Foolproof survivorship deed? William R. Scott, 22 J.B.A.K. 128, 130 (1953).
Case of Malone v. Sullivan, 136 K. 193, 14 P.2d 647, mentioned in note on survivorship interests in a joint safe deposit, 3 K.L.R. 368, 370 (1955).
1955-56 survey of real property and future interests, Ferd E. Evans, Jr., 5 K.L.R. 300, 311, 312 (1956).
1956-57 survey of real property and future interests, Ferd E. Evans, Jr., 6 K.L.R. 225, 227, 228 (1957).
Amendment of 1955 quoted and discussed, James D. Dye, 25 J.B.A.K. 334, 335 (1957).
Real estate title standards dealing with joint tenancies, William R. Scott, 7 K.L.R. 180 (1958).
Quoted in comment on language, 1 W.L.J. 498 (1961).
Joint tenancies in bank accounts, 11 K.L.R. 277, 278, 279 (1962).
"Attachment or Garnishment of Jointly Held Bank Accounts," Clarence Koch, 7 W.L.J. 51, 57 (1967).
"Joint Tenancy; Effects Explored," Marvin E. Thompson, 37 J.B.A.K. 83, 84, 85 (1968).
"Comment on Felonious Killing as a Bar to Intestate Succession," Gary D. Taylor, 8 W.L.J. 128, 132 (1968).
Survey of Kansas law on real and personal property (1965-1969), 18 K.L.R. 427, 439 (1970).
"Does Kansas Need the Uniform Probate Code?" Verne M. Laing, 42 J.B.A.K. 139, 185 (1973).
"Kansas' Marketable Record Title Act," Christel E. Marquardt, 13 W.L.J. 33, 45 (1974).
Survey of property law, Mark Corder and William J. Paprota, 15 W.L.J. 387, 389 (1976).
"Survey of Kansas Law: Real and Personal Property," Deanell R. Tacha, 27 K.L.R. 283, 298 (1979).
"Disclaimer Statutes: New Federal and State Tools for Postmortem Estate Planning," Carolyn A. Adams, 20 W.L.J. 42, 60 (1980).
"Garnishment in Kansas: A Procedural Paradox," Leon B. Graves, 49 J.B.A.K. 129, 133.
"Will Substitutes in Kansas," Jana J. Deines and Michael E. McMahon, 23 W.L.J. 132, 140, 141 (1983).
"Contracts to Will: An Estate Planning Alternative for the Kansas Practitioner," Kevin J. Arnel, Steven J. Wood, 26 W.L.J. 444, 459 (1987).
"Don't Plan on Aging: The Kansas Supreme Court Reaffirms Its Hostility Toward Medicaid Planning [Brewer v. Schalansky, 102 P.3d 1145 (Kan. 2004)]," Bryn A. Poland, 45 W.L.J. 491 (2006).
Attorney General's Opinions:
Recordation of death certificates with county register of deeds; open public records. 91-87.
CASE ANNOTATIONS
1. History, purpose and effect of section discussed; conveyance construed. Bouska v. Bouska, 159 Kan. 276, 279, 280, 153 P.2d 923.
2. Survivorship may be created by contract making intention clear; evidence insufficient. Spark v. Brown, 167 Kan. 159, 164, 205 P.2d 938.
3. Joint tenancy may be created in personalty; savings account held joint tenancy. In re Estate of Fast, 169 Kan. 238, 242, 218 P.2d 184.
4. Phrase "or the survivor or survivors of them" did not create joint tenancy. In re Estate of Swingle, 178 Kan. 529, 531, 289 P.2d 778.
5. Cited in holding section K.S.A. 59-513 inapplicable to surviving joint tenant. In re Estate of Foster, 182 Kan. 315, 320, 320 P.2d 855.
6. Real estate joint tenancy; sale; proceeds still in joint tenancy; intent; survivorship. In re Estate of Hewitt, 183 Kan. 352, 354, 355, 327 P.2d 872.
7. Construed; language in deed did not clearly indicate joint tenancy was intended. Riggs v. Snell, 186 Kan. 355, 358, 359, 360, 350 P.2d 54. Clarified in denying rehearing, 186 Kan. 725, 726, 352 P.2d 1056.
8. Checking account; evidence insufficient to show joint tenancy created; intent. Miller v. Higgins, 188 Kan. 736, 738, 740, 741, 366 P.2d 257.
9. Deed construed; grantees held tenants in common; rights determined. Holt v. King, 250 F.2d 671, 674.
10. History of joint tenancy in Kansas reviewed; joint tenancy is contractual relationship; federal tax lien against one joint owner enforceable against his interest in the property. Edwards v. United States, 215 F. Supp. 382, 383, 384, 386.
11. Trustees hold as joint tenants, not as tenants in common. Rothenberg v. United States, 233 F. Supp. 864, 867.
12. Joint tenancy in bank account created under facts. Simonich, Executrix v. Wilt, 197 Kan. 417, 420, 417 P.2d 139.
13. Ownership of joint property by survivor is based upon acquisition contract and not inheritance. In re Estate of Pyke, 199 Kan. 1, 2, 9, 12, 427 P.2d 67.
14. Signature card constituted a contract creating joint tenancy bank account. In re Estate of Smith, 199 Kan. 89, 93, 427 P.2d 443.
15. Introductory clause of a deed referring to grantees as joint tenants established joint tenancy. Spresser v. Langmade, 199 Kan. 96, 98, 427 P.2d 478.
16. Grant of personal property to two or more persons creates tenancy in common unless language of grant is clear that joint tenancy intended. Pace v. First National Bank of Osawatomie, 271 F. Supp. 230.
17. Oral agreement between bank and depositors; joint tenancy established. Edwards v. Ledford, 201 Kan. 518, 522, 523, 525, 526, 441 P.2d 834.
18. Section does not preclude oral evidence of joint tenancy contract; contract term requirements. In re Estate of Carlson, 201 Kan. 635, 644, 443 P.2d 339.
19. Joint tenancy not created where blank on bank account signature card indicating type of account not filled in. Pace v. First National Bank of Osawatomie, Kansas, 404 F.2d 52, 53, 54.
20. Joint tenancy in bank account not created where intent of the depositor is unclear; parol evidence admissible to clarify intention of depositor where claim made that a joint tenancy bank account was established. In re Estate of Johnson, 202 Kan. 684, 696, 697, 452 P.2d 286.
21. Mentioned in considering automobile ownership. Mercantile Bank & Trust Co. v. Western Casualty & Sur. Co., 415 F.2d 606, 611.
22. Will construed; language in will already expressed intention to create joint tenancy. In re Estate of Truex, 205 Kan. 169, 173, 468 P.2d 237.
23. Curative statute (K.S.A. 58-2270) retroactively affecting vested rights held unconstitutional. Davis, Administrator v. Union Pacific Railway Co., 206 Kan. 40, 43, 46, 476 P.2d 635.
24. Oral evidence of oral joint tenancy contract admissible; insufficiency of evidence; no claim established. In re Estate of Matthews, 208 Kan. 492, 493, 500, 507, 493 P.2d 555.
25. Discussed; rules governing the creation and establishment of joint tenancies discussed. Winsor v. Powell, 209 Kan. 292, 299, 497 P.2d 292.
26. Applied; action to foreclose mechanics lien; strict compliance with notice provisions of K.S.A. 60-1103 required. Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 147, 505 P.2d 147.
27. Cited in action determining title to proceeds from sale of wheat by bankrupt tenant. Mater v. Boese, 213 Kan. 711, 718, 518 P.2d 482.
28. Surviving tenants took whole of account; trust impressed on interest of one survivor. Johnson v. Capitol Federal Savings and Loan Association, 215 Kan. 286, 290, 291, 524 P.2d 1127.
29. Joint tenancy contractual arrangement governed by contract law; spouse's right to dispose of personal property during lifetime. Eastman, Administrator v. Mendrick, 218 Kan. 78, 85, 542 P.2d 347.
30. Magic words absent from certificate of deposit; general rules stated; intent to create joint tenancy established by parol evidence. In re Estate of Wood, 218 Kan. 630, 632, 635, 545 P.2d 307.
31. Section noted; Kansas no longer recognizes tenancy by entirety. Walnut Valley State Bank v. Stovall, 1 Kan. App. 2d 421, 426, 566 P.2d 33.
32. Applied; quiet title action; adverse possession requirements not met. Renensland v. Ellenberger, 1 Kan. App. 2d 659, 665, 574 P.2d 217.
33. Joint tenant convicted of feloniously killing husband became tenant in common with heirs of husband. In re Estate of Shields, 1 Kan. App. 2d 688, 693, 574 P.2d 229.
34. Garnishment of joint tenancy bank account severed joint tenancy; rebuttable presumption of equal ownership; burden of proof. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 460, 461, 574 P.2d 1382.
35. Admissibility of parol and extrinsic evidence to prove joint tenancy ownership of intangible personal property; when. In re Estate of Girndt, 225 Kan. 352, 354, 590 P.2d 1038.
36. Device of real property to two or more persons "share and share alike, or to the survivor of them" creates tenancy in common. McVey v. Pfingston, 3 Kan. App. 2d 276, 278, 593 P.2d 1014.
37. Mentioned in determination of whether interests of two separate trusts created by a will were held as tenancy in common or in joint tenancy. In re Estate of Berryman, 226 Kan. 116, 123, 595 P.2d 1120.
38. Statute requires clear evidence that owner intended to create ownership in joint tenancy. In re Estate of Carter, 6 Kan. App. 2d 934, 937, 938, 636 P.2d 227 (1981).
39. Estates in entirety abolished in Kansas in 1891. Hall v. Hamilton, 233 Kan. 880, 884, 667 P.2d 350 (1983).
40. Cited on question of type of property interest conveyed by one seeking medical assistance from S.R.S. Neaderhiser v. State Dept. of Social & Rehab. Serv., 9 Kan. App. 2d 115, 117, 673 P.2d 462 (1984).
41. Cited; principles used in determining existence of joint tenancy account examined; four unities under common law noted. Robertson v. Ludwig, 12 Kan. App. 2d 571, 576, 752 P.2d 690 (1988).
42. Presumption of equal ownership among parties created by joint tenancy is rebuttable; party attacking has burden. In Re Crouch C Stores, Inc., 120 B.R. 178, 180 (1990).
43. Income tax refund may not be granted or devised; debtor's estate must distribute to creditors. In Re Ballou, 12 B.R. 611, 612 (1981).
44. Noted where joint tenancy funds loaned to son by parents were set off against distributive share from estate. In re Estate of Button, 17 Kan. App. 2d 11, 16, 830 P.2d 1216 (1992).
45. Rebuttable presumption of equal ownership arises where tenancy in common exists. In re Griffin, 141 B.R. 207, 208, 211 (1992).
46. Prenuptial agreement directing disposition of specific real estate governs despite parties later deeding property to themselves as joint tenants. King v. Estate of King, 25 Kan. App. 2d 335, 337, 962 P.2d 1118 (1998).
47. Joint tenancy created even though interest in property was 99% for grantor mother and 1% for grantee son. In re Estate of Lasater, 30 Kan. App. 2d 1021, 54 P.3d 511 (2002).
48. Mentioned in determining whether a joint tenancy account is created. Wilson v. Wilson, 37 Kan. App. 2d 564, 565, 154 P.3d 1136 (2007).
49. Cited; parties' intent is key creation of ownership relationship under K.S.A. 58-501. In re Estate of Lane, 39 Kan. App. 2d 1062, 1068, 1069, 188 P.3d 23 (2008).
50. The issue of whether a husband and wife owned property in a bank account opened in the state of Missouri, as tenants by the entirety, such that judgment against either the husband or the wife alone may not attach to the property, or as joint tenants with right of survivorship when garnishment occurs in the state of Kansas, which is severable to meet the demands of creditors, was not a procedural issue controlled by laws of the forum state but was a substantive issue for purposes of choice-of-law analysis. This issue related to property ownership, rather than contracts, when resolving a conflict-of-laws question. M & I Marshall & Ilsley Bank v. Higdon, 319 Kan. 572, 579, 556 P.3d 498 (2024).