THE DOCTRINE OF ELECTION AND SURVIVORSHIP PROPERTY

The doctrine of election is a common law rule of equity that requires that if a testator attempts to dispose of property belonging to someone else and also makes a devise to that person, the beneficiary must choose between either keeping the property or accepting the devise. Usually, the doctrine of election will require the following:

 

  • The testator must intentionally dispose of the property.
  • The property must belong to someone other than the testator.
  • The will must devise other property to the actual owner.

In Illinois, the first district appellate court held that the doctrine of election does not apply to survivorship property. In Williamson v Williamson, 657 NE2d 651, 275 Ill App 3d 999, 212 Ill Dec 450 (1st D 1995), a joint tenant attempted to dispose of the tenancy property in his will and then made a disposition to the other joint tenant. The court found that where a testator attempted to dispose of property that passed by survivorship, the doctrine of election could not be applied to defeat the operation of law. The court premised its decision upon the fact that the survivorship feature of joint tenancy was created by the legislature, whereas the doctrine of election is a judicially applied rule imported into the common law from Roman-based civil law. Finding that statutory law created through the legislature supersedes common law rulings, the court refused to allow the doctrine of election to defeat the survivorship feature of joint tenancy. The court stated that it was limiting the doctrine to cases where application would prevent injustice or where the testator expressly stated an intent to make the beneficiary choose. Id. at 656.

Wisconsin's statute on wills specifically states that the doctrine of election applies whether the beneficiary holds the property by right of ownership, survivorship, beneficiary designation or election. W.S.A. 853.15.

In Indiana's most recent case on the doctrine of election, the Court of Appeals of Indiana held the opposite of Williamson, applying the doctrine of election to tenancy by the entirety. Citizens Nat'l Bank of Whitley County v Stasell, 408 N.E.2d 587 (1980), reh'g denied, 415 NE2d 150 (Ind Ct App 3rd D 1981). In that case a wife died, and her will attempted to dispose of property that she held with her husband in tenancy by the entirety. The husband elected to take the property through the terms of the will, which granted him a life estate with the remainder to the deceased wife's nieces and nephews. Later, the husband remarried and subsequently died with a will devising his property to his second wife. The second wife brought a quiet title suit against the nieces and nephews. The appellate court quieted title to the property in the nieces and nephews because the husband retained only a life estate in the property when he chose to accept the bequests to him from his first wife's will. If he had refused to take under the will, then he would have held the property in fee simple, due to the survivorship quality of property held in tenancy by the entirety. In denying rehearing, the court of appeals emphasized that since the husband had elected to take under the will when his first wife's estate was probated, and if the other requirements for the doctrine of election were satisfied, then the property must pass by the terms of the will. Thus, the Indiana court held that the common law doctrine of election can interfere with the intended effects of the statutorily-created tenancy by the entirety.

Although Illinois's Williamson case soundly denounces applying the doctrine of election to survivorship property, the split of opinion in other jurisdictions indicates the possibility that different Illinois courts could rule otherwise. Therefore, ATG's underwriting guidelines will continue to recommend that attorneys obtain joint tenancy or tenancy by the entirety affidavits and carefully examine wills for possible doctrine of election problems when insuring joint tenancy or tenancy by the entirety property.

© ATG atgc0299vol23

 

Print this page