Upchurch v. Upchurch, [Ms. SC-2022-0478, Apr. 7, 2023] __ So. 3d __ (Ala. 2023). The Court (Cook, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) reverses the Talladega Circuit’s order awarding all proceeds from the sale of parcels of land to David and Jason Upchurch, and excluding Michael Upchurch’s widow Carol. David, Jason, and Michael owned the parcels as joint tenants with right of survivorship and had signed a contract to sell the property to a third party that had not yet closed when Michael died. Ms. **3-4.
The Court explains “a joint tenancy with the right of survivorship may be severed or destroyed by an act of one or more of the tenants that is inconsistent with the continuation of the joint tenancy. 1 Jesse P. Evans III, Alabama Property Rights and Remedies § 3.14[d][x] (5th ed. 2012). Acts inconsistent with the continuation of a joint tenancy with the right of survivorship include the disruption of any one of the required three unities – title, interest, and possession – such as through the sale of the property for a division of proceeds.” Ms. *9.
The Court holds
[T]he joint tenancy with the right of survivorship between Michael, David, and Jason was severed and became a tenancy in common [when the land sale contract was executed]. This Court has stated that the “major distinction between a tenancy in common and a joint tenancy is that the interest held by tenants in common is devisable and descendible, whereas the interest held by joint tenants passes automatically to the last survivor.” Porter v. Porter, 472 So. 2d 630, 632 (Ala. 1985). Having established that a tenancy in common existed at the time of Michael’s death and at the time the Talladega properties were sold, Michael’s estate was entitled to one-third of the proceeds from the sale, representing Michael’s interest in the properties.