Washington Law Review


By Initiative No. 208, adopted and now codified as RCW 64.28, the former prohibition against joint tenancy with the right of survivorship has been repealed and substituted with ".... a form of co-ownership of property, real and personal, known as joint tenancy."' The proviso that the transfer shall not derogate from the rights of creditors raises serious questions of meaning and interpretation. If the proviso means that the rights of creditors will not be changed by joint tenancy ownership, then this article will serve little purpose. If the proviso is to be applied only to the creditors existing at the time of the creation of the joint tenancy, then all subsequent creditors must look to the common law for their rights and remedies. If the proviso applies only to the original transfer creating the joint tenancy, an existing creditor may ignore the transfer and treat the debtor as the sole owner, but if the proviso be given a broader interpretation to permit its application to the "passage" of title occurring at the death of a joint tenant, it will create creditors' rights and incidents of joint tenancy beyond the incidents at common law.8 RCW 64.28.010 further provides, "... a joint tenancy shall have the incidents of survivorship and severability as at common law." The better approach would be to limit the proviso to the original transfer, though the matter will not be laid to rest until the supreme court has passed upon this specific point.

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