An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor, or to two or more persons with right of survivorship, shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value. In any litigation involving the issue of such tenancy a preponderance of the evidence shall be sufficient to establish the same.
History: 1953 Comp., § 70-1-14.1, enacted by Laws 1955, ch. 174, § 1.
ANNOTATIONSSection applies to bank accounts. Kinney v. Ewing, 1972-NMSC-001, 83 N.M. 365, 492 P.2d 636.
This statute is intended to do away with special proof requirement when there is a transmutation of community property into joint tenancy. Estate of Fletcher v. Jackson, 1980-NMCA-054, 94 N.M. 572, 613 P.2d 714, cert. denied, 94 N.M. 674, 615 P.2d 991.
Quantum of proof necessary to rebut or sustain prima facie evidence of joint tenancy is preponderance of the evidence, not clear, strong and convincing proof. Blake v. Blake, 1985-NMCA-009, 102 N.M. 354, 695 P.2d 838.
Joint tenancy created. — Execution of a joint tenancy deed by a husband, putting separate property in the names of the husband and wife, creates a joint tenancy, not community property. Hughes v. Hughes, 1981-NMSC-110, 96 N.M. 719, 634 P.2d 1271.
Parol evidence may be looked at to determine grantor's intent and the parties' understanding in establishing whether a deed created a joint tenancy, except where purchaser or encumbrancers for value are involved. Ohl v. Ohl, 1981-NMSC-128, 97 N.M. 175, 637 P.2d 1230.
Existence and nonexistence of joint tenancy both proved by preponderance. — The words "the same" in the last sentence of this section refer back to "the issue of such tenancy." If joint tenancy is "in issue," its existence is to be resolved, and the negative would seem to be as much included as the affirmative. If the legislature had intended the negative to require a greater quantum of proof than the affirmative, it is reasonable to suppose that it would have said so. Kinney v. Ewing, 1972-NMSC-001, 83 N.M. 365, 492 P.2d 636.
Community funds used with no intention to establish joint tenancy creates no such tenancy. — Because it was not the intention of husband and wife to hold the property as joint tenants, and because community funds were used to purchase the property, the trial court properly concluded that a joint tenancy was not created. Wiggins v. Rush, 1971-NMSC-092, 83 N.M. 133, 489 P.2d 641.
Presumption against joint tenancy. — If separate property has been so commingled or mixed with property acquired after marriage so that the separate property cannot be clearly traced or identified, then there is a presumption that the property acquired after marriage is community property, and not held in joint tenancy, unless this presumption can be overcome by proof. Wiggins v. Rush, 1971-NMSC-092, 83 N.M. 133, 489 P.2d 641.
Law reviews. — For symposium, "The Effects of an Equal Rights Amendment on the New Mexico System of Community Property: Problems of Characterization, Management and Control," see 3 N.M. L. Rev. 11 (1973).
For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M. L. Rev. 1 (1974).
For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev. 113 (1978-79).
For article, "Survey of New Mexico Law, 1979-80: Domestic Relations and Juvenile Law," see 11 N.M.L. Rev. 134 (1981).
For note, "Community Property - Transmutation of Community Property: A Preference for Joint Tenancy in New Mexico?" see 11 N.M.L. Rev. 421 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Ratification of prior ineffective deed by joining in instrument, 7 A.L.R.2d 294.
Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence or incompetency, 7 A.L.R.2d 1317.
Deed as superseding or merging provisions of antecedent contract imposing obligations upon the vendor, 38 A.L.R.2d 1310.
Estate created by deed to persons described as husband and wife but not legally married, 9 A.L.R.4th 1189.
26 C.J.S. Deeds § 127.