Chapter: In Louisiana, what type of ownership is characterized by the right of survivorship? (EN)

Chapter: In Louisiana, what type of ownership is characterized by the right of survivorship? (EN)

Understanding Ownership Regimes in Louisiana

Louisiana’s legal system is unique within the United States, drawing heavily from civil law traditions rooted in Roman and French law, rather than English common law. This distinction profoundly impacts property ownership and inheritance laws. The concept of ownership in indivision is central to understanding the specific type of ownership with right of survivorship.

Ownership in Indivision

Ownership in indivision, conceptually equivalent to common ownership, describes a situation where two or more persons own the same thing concurrently. Each owner holds a share, expressed as a fraction or percentage, in the undivided whole.

• Characteristics:
  • Each co-owner is entitled to use the entire property, provided such use does not hinder the other co-owners’ right to use it similarly.
  • Each co-owner is responsible for a proportional share of the expenses associated with the property.
  • Each co-owner can freely alienate (sell, donate, etc.) their share in the indivision, unless there’s an agreement to the contrary.
  • Each co-owner can demand partition of the property, forcing a sale or division to end the indivision (subject to legal constraints and agreements).

The Right of Survivorship: A Key Distinguisher

The right of survivorship is a critical feature altering the standard rules of ownership in indivision. It dictates what happens to a co-owner’s share upon their death. Instead of the deceased’s share passing to their heirs according to their will or the laws of intestacy (dying without a will), it automatically accrues to the surviving co-owner(s). This bypasses the succession process.

Joint Tenancy with Right of Survivorship: An Import from Common Law

While not inherently a part of Louisiana’s traditional civil law, the concept of joint tenancy with right of survivorship has been recognized and adapted in Louisiana law. It is crucial to understand that this is not simply ownership in indivision. It requires specific language and intent.

• Creation:

  • Joint tenancy with right of survivorship is typically created through explicit language in the deed or other title document. The document must clearly express the intent of the co-owners to establish a right of survivorship. Wording such as “as joint tenants with right of survivorship” or “to A and B, with right of survivorship” is crucial.
  • Louisiana Revised Statute 9:2221 provides the legal framework for creating a joint account with right of survivorship in financial institutions. This is a common application.

• Termination:

  • Joint tenancy with right of survivorship can be terminated by:
    • Partition: A co-owner can force a partition of the property, dissolving the joint tenancy and converting it into ownership in indivision without right of survivorship.
    • Severance: A co-owner can sever their interest by conveying it to a third party. This act destroys the joint tenancy and converts the arrangement into ownership in indivision. The third party becomes a tenant in common with the remaining original co-owner(s), who remain joint tenants with each other.
    • Agreement: The co-owners can mutually agree to terminate the joint tenancy.

Bank Accounts and Right of Survivorship

Louisiana law specifically addresses joint bank accounts and the right of survivorship. Louisiana Revised Statute 6:312 states that sums remaining on deposit in a joint account, at the death of a party to the account, belong to the surviving party or parties as against the estate of the deceased, unless there is clear and convincing evidence of a different intention at the time the account was created. This highlights the importance of documenting the intent of the parties.

Marriage and Community Property

Louisiana is a community property state. Property acquired during the marriage is generally considered community property, owned equally by both spouses. However, the right of survivorship does not automatically apply to community property. Upon the death of a spouse, their one-half interest in the community property passes to their heirs, either through a will or through the laws of intestacy. A surviving spouse can, however, acquire the deceased spouse’s share of community property through succession. It is vital to distinguish community property from property held as joint tenants with right of survivorship. Property held as joint tenants with right of survivorship will pass to the surviving spouse outside of the succession process.

Example: A Practical Application

Suppose A and B purchase a house together. The deed specifically states: “To A and B, as joint tenants with right of survivorship.” A subsequently dies. Under this scenario, A’s interest in the house automatically transfers to B. B becomes the sole owner of the house. The property does not become part of A’s estate, and A’s heirs have no claim to it.

If, however, the deed stated “To A and B” without any mention of joint tenancy or right of survivorship, they would own the property in indivision. Upon A’s death, A’s share of the property would pass to their heirs through succession, and B would remain a co-owner with A’s heirs.

Mathematical Representation (Illustrative)

Let:

• $S$ = Share of a co-owner
• $n$ = Number of co-owners

In ownership in indivision, initially, $S = \frac{1}{n}$.

In joint tenancy with right of survivorship, upon the death of one co-owner, the surviving co-owners’ shares are adjusted. The deceased’s share is distributed equally among the survivors. If one owner dies, the share of each remaining owner becomes:

$S_{new} = S_{old} + \frac{S_{deceased}}{n_{surviving}}$

where $n_{surviving}$ is the number of surviving co-owners.

For example, if there are two co-owners (A and B) with joint tenancy with right of survivorship ($S_A = S_B = \frac{1}{2}$), and A dies, then $S_B = \frac{1}{2} + \frac{1/2}{1} = 1$. B now owns the entire property.

Important Discoveries and Breakthroughs in Louisiana Law Regarding Survivorship

The gradual acceptance and codification of joint tenancy with right of survivorship in Louisiana represents a significant shift, adapting common law principles to the existing civil law framework. Landmark cases have helped define the precise language required to create such arrangements and clarify the rights and responsibilities of co-owners. The specific revisions to statutes governing bank accounts (e.g., LRS 6:312) reflect a legislative effort to provide clarity and certainty in this area of property law, minimizing potential disputes after the death of a co-owner.

Conclusion: The Answer

In Louisiana, joint tenancy with right of survivorship (and certain types of joint accounts) is the type of ownership characterized by the right of survivorship. While the concept of ownership in indivision is fundamental, it is only through the explicit creation of a joint tenancy with right of survivorship, or through specific statutory provisions concerning joint accounts, that this right applies. It is crucial to carefully examine the language in the deed or account agreement to determine if this right exists.