The Article addresses the frequently litigated issue of the ownership of joint bank accounts that elderly people may have opened to protect against incapacity or to avoid FDIC insurance limits on single accounts. Despite the strong possibility of these non-donative motives, most states—by statute or court decision—award the accounts to the surviving co-tenants instead of the depositors’ heirs or will beneficiaries. This occurs even when the account contract did not contain language of survivorship and even when there is no evidence that the depositor was offered a contract that would have allowed him or her to choose an agency arrangement.
The author argues that these presumptions in favor of survivorship rights exist because of a faulty analogy to other will substitutes such as life insurance, where donative intent is clear. The author also examines the few statutory account forms that purport to allow depositors to express various intents. These forms are hopelessly complex for a depositor without legal training and propose a simpler deposit account agreement that would allow a depositor to clearly indicate whether donative intent exists.
"Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent,"
Marquette Elder's Advisor:
2, Article 2.
Available at: http://scholarship.law.marquette.edu/elders/vol15/iss2/2