Julia v. Russo, — So.2d —-, 2008 WL 2596324 (Fla. 4th DCA Jul 02, 2008)

The 4th DCA reversed itself on an important point involving joint bank accounts, withdrawing this opinion and replacing it with the linked-to opinion above. The issue on rehearing was a simple evidentiary burden-shifting question:

If a decedent funded a bank account 100% with his own funds, then put his girlfriend’s name on the account, does the girlfriend have to prove the decedent intended to make a gift to her of a 50% interest in the account, or does the decedent’s estate have to prove that the decedent did NOT intended to make this gift?

The first time around, relying on two divorce cases to resolve this probate dispute (??!!), the 4th DCA said girlfriend bore the burden of proof.  Girlfriend filed a motion for rehearing, took another crack at the issue . . . and won!  On rehearing the 4th DCA completely reversed its prior ruling. This time around the 4th DCA sided with the girlfriend, shifting the burden of proof over on to the estate.

The next time your involved in litigation involving a joint bank account owned by tenants in common, take another look at this case. Unless the facts are a slam dunk for one side or the other, who bears the burden of proof will probably by the single most important factor in determining who wins or loses the case. That’s usually the sort of thing you want to know up front, not once you’re six months into the case and going down in a ball of flames.

Here’s how the 4th DCA articulated the rule:

On appeal, appellant argues that the trial court erred in finding that there was no presumption of a gift of personal property because Florida law provides that when a joint bank account is created with the funds of one person, there is a presumption of a gift to the other person which may be rebutted only by clear and convincing evidence to the contrary. We agree.

Initially, the trial court’s reliance on Crouch and Grieco is misplaced. Both Grieco and Crouch were decisions which addressed the issue of whether certain assets were marital or nonmarital under section 61.075(5), Florida Statutes (2005). The principles involved in that determination are inapplicable here.

The issue here is how to determine what share a tenant in common is entitled to. “In absence of evidence to the contrary, co-tenants are presumed to owe [sic] equal undivided interests. Levy v. Docktor, 185 B.R. 378, 381 (S.D.Fla.1995). “[U]pon the death of a cotenant, the deceased cotenant’s interest in the property subject to the tenancy in common passes to his or her heirs, and not to the surviving cotenant.” 12 Fla. Jur.2d Cotenancy and Partition § 4 (1998). See, e.g., Reinhardt v. Diedricks, 439 So.2d 936, 937 (Fla. 3d DCA 1983). Taking title to property in joint names creates a presumption of a gift which may be rebutted. Sullivan v. Am. Tel. & Tel. Co., 230 So.2d 18, 20 (Fla. 4th DCA 1969). See also O’Donnell v. Marks, 823 So.2d 197 (Fla. 4th DCA 2002) (taking title as tenants in common is an indication of an intention to make a beneficial gift of an undivided interest to the other party); Mercurio v. Urban, 552 So.2d 236 (Fla. 4th DCA 1989) (stocks owned as tenants in common entitles co-owner to presumption of gift).

The trial court did not apply the presumption of a gift in appellant’s favor but instead erroneously required her to prove the decedent intended to make a gift. We therefore find it necessary to reverse and remand for the trial court to determine if there was clear and convincing evidence presented which rebutted the presumption of a gift.