Joint Tenancy Right of Survivorship Divorce In Michigan
Generally, all jointly held property is subject to being partitioned. MCL 600.3304; MSA 27A.3304. However, as defendant points out, there is a significant distinction between a joint tenancy and a joint tenancy with full rights of survivorship. In fact, these two distinct joint tenancies have long been recognized in Michigan.
See Schulz v. Brohl, 116 Mich 603; 74 NW 1012 (1898);
Finch v. Haynes, 144 Mich 352; 107 NW 910 (1906);
Jones v. Snyder, 218 Mich 446; 188 NW 505 (1922);
Ames v. Cheyne, 290 Mich 215; 287 NW 439 (1939);
Rowerdink v. Carothers, 334 Mich 454; 54 NW2d 715 (1952);
Ballard v. Wilson, 364 Mich 479; 110 NW2d 751 (1961);
Mannausa v. Mannausa, 374 Mich 6; 130 NW2d 900 (1964); Albro v. Allen, 434 Mich 271, 276; 454 NW2d 85 (1990).
Our Supreme Court, in Albro, id. at 274-276 stated:
The principal characteristic of the joint tenancy is the right of survivorship. Upon the death of one joint tenant, the surviving tenant or tenants take the whole estate. Tiffany, supra, 419, p 198. In the standard joint tenancy, the right of survivorship may be destroyed by severance of the joint tenancy. Id., p 199. the joint tenancy may be severed by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties. Smith v. Smith, 290 Mich 143; 287 NW 411 (1930). If one joint tenant conveys his interest to a third party, then the remaining joint tenant and the grantee become tenants in common, thus destroying the element of survivorship.
At the crux of this case is the distinction between the "joint tenancy will full rights of survivorship" and the ordinary joint tenancy. the "joint tenancy with full rights of survivorship" is comprised of a joint life estate with dual contingent remainders. See Cameron, Michigan Real Property Law, 9.11, p 274. While the survivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual contingent remainders of the "joint tenancy with full rights of survivorship" are indestructible. a cotenant's contingent remainder cannot be destroyed by an act of the other cotenant.
The Court in Albro v. Allen went on to consider the effect of a conveyance on the cotenant's survivorship rights. "Generally, it is recognized that where the interest held is not an ordinary joint tenancy, but instead a joint life estate with dual contingent remainders, the right of survivorship cannot be affected by a conveyance of the life estate." Id. at 278.
The significant holding of Albro is that the contingent remainder of either cotenant may not be destroyed by any act of the other.
Although either cotenant may transfer his or her interest in the joint life estate, such a transfer has no effect on the contingent remainders; thus, upon the death of either of the original cotenants, the other cotenant, or any person to whom the contingent remainder has been transferred, takes the whole estate. Id. at 287.
The trial court in the present case, however, found that MCL 552.102; MSA 25.132 allowed it to sever the survivorship interest upon the divorce. That statute provides:
Every husband and wife owning real estate as joint tenants or as tenants by entireties shall, upon being divorced, become tenants in common of such real estate, unless the ownership thereof is otherwise determined by the decree of divorce.