## Facts

- Sam Ashe and Esther Ashe were married and accumulated property during their marriage.
- In 1963, they opened a brokerage account at E.F. Hutton held as a joint tenancy with right of survivorship (the EFH account).
- In 1973, the Ashes moved to Idaho and acquired a residence known as the “Home Place,” initially treated as community property.
- In 1981, with Sam’s consent and as part of an exchange involving other conveyances of community property to Sam’s brother, the Home Place was deeded to Esther and her son from a prior marriage, Jack Hurt.
- The deed to the Home Place was delivered to Esther but was not immediately recorded.
- After marital disputes, Sam liquidated the EFH account without Esther’s consent and opened a new Merrill Lynch brokerage/cash management account in his sole name using those proceeds (the ML account).
- After learning of the liquidation and new account, Esther filed for divorce in an effort to protect what she asserted was her one-half community interest in the funds.
- During the divorce period, Esther recorded the Home Place deed and executed a will leaving her assets to Jack.
- Sam and Esther later reconciled, and Sam changed the ML account into a joint tenancy account with right of survivorship naming Esther as co-owner.
- After Esther’s death, Sam petitioned in the probate proceeding to (1) declare the ML account his separate property by survivorship and excluded from the estate, and (2) invalidate the Home Place transfer and have the property treated as community property included in the estate.
- The magistrate denied Sam’s petition, concluding Sam did not prove Esther knowingly and intentionally agreed to change the community character of the funds in the ML account, and that the Home Place deed had been effectively delivered and conveyed.
- The district court affirmed, and Sam appealed to the Idaho Court of Appeals.

## Issues

1. Whether the surviving spouse proved that the decedent knowingly and intentionally agreed to change community funds placed in a joint-tenancy brokerage account into property that would pass entirely to the survivor by right of survivorship.
2. Whether the deed conveying the Home Place to Esther and Jack was effectively delivered and therefore removed the property from the marital community and the probate estate.

## Decision

- The Idaho Court of Appeals affirmed the district court’s order affirming the magistrate.
- The ML account was properly treated as community property because Sam failed to prove, by clear and convincing evidence, that Esther knowingly and intentionally agreed to change the community character of the funds when the account was placed in joint tenancy with survivorship.
- The Home Place conveyance was valid; the deed had been delivered and the transfer was effective between the parties even though recording occurred later, so the property was not part of the community or the probate estate at Esther’s death.

## Legal Principles

- Property acquired during marriage is presumed to be community property.
- Community property is not changed into joint-tenancy property with survivorship effects absent proof that both spouses knowingly and intentionally agreed to the change.
- The spouse asserting a change in character bears the burden of proof; in this case, the trial court properly required clear and convincing evidence of the decedent’s knowing and intentional agreement.
- The form of title (e.g., “joint tenancy with right of survivorship”) does not, standing alone, establish that community funds were changed into property that will pass entirely to the survivor.
- A deed can be effective upon delivery and acceptance; recording is not required to complete the transfer as between the parties.
- On appeal, factual findings are upheld if supported by substantial, competent evidence; appellate courts do not reweigh conflicting evidence about intent or delivery.

## Conclusion

The Court of Appeals held that merely retitling a brokerage account in joint tenancy did not prove the decedent agreed to convert community funds into property passing entirely to the survivor by survivorship, and it upheld the magistrate’s finding—supported by the record—that the Home Place had been validly conveyed by a delivered deed and therefore was outside the marital community and the probate estate.


Estate of Ashe, 114 Idaho 70, 753 P.2d 281 (1988)