## Facts

- Cristina Varela and Carlos Alberto Bernachea, both Argentine citizens, developed a romantic relationship and later cohabited in Florida.
- At Bernachea’s request, Varela stopped working, moved into his condominium, and he paid her expenses and gave her expensive gifts.
- Bernachea added Varela as a joint tenant with right of survivorship on his Merrill Lynch CMA account.
- Bernachea’s banker testified that he explained the joint tenancy transaction in Spanish and that Bernachea, a retired attorney with decades of practice, did not indicate misunderstanding of its legal effect.
- Varela received and used a Visa check card tied to the CMA account; bank personnel testified they were never told to restrict her access to the account.
- After Bernachea suffered a heart attack and was hospitalized, his daughters excluded Varela from the hospital and required her to leave the condominium.
- Shortly thereafter, Varela wrote a $280,000 check on the CMA account and deposited it into her personal account.
- After his release, Bernachea disputed her right to withdraw funds and asked Merrill Lynch to reverse the transfer; Merrill Lynch returned the funds to the CMA account and refused to release them to Varela.

## Issues

1. Whether adding Varela as a joint tenant with right of survivorship created a presumption that Bernachea made a present gift of an ownership interest in the CMA account.
2. Whether Bernachea produced clear and convincing evidence sufficient to rebut that presumption by proving lack of donative intent.

## Decision

- The appellate court reversed the final judgment that declared Bernachea the sole owner of the CMA account.
- The court held Bernachea did not present clear and convincing evidence to rebut the presumption of a gift arising from the joint tenancy with right of survivorship.
- The case was remanded with directions to enter judgment for Varela recognizing her ownership interest, described as a one-half interest in the account.

## Legal Principles

- In Florida, titling a financial account as a joint tenancy with right of survivorship presumptively reflects donative intent and a gift of a present ownership interest to the added joint tenant.
- The party seeking to defeat the joint tenant’s ownership must rebut the gift presumption by clear and convincing evidence of lack of donative intent.
- Unrestricted access to account funds by the added joint tenant is consistent with co-ownership and supports the gift presumption.
- There is no meaningful distinction between withdrawing joint-account funds through a check card versus a paper check for purposes of assessing ownership and donative intent.

## Conclusion

The court held that a jointly titled account with right of survivorship, coupled with evidence of informed creation and unrestricted access, establishes a strong presumption of a present gift that cannot be overcome by unsupported after-the-fact claims of limited intent; Varela was entitled to recognition of her ownership share.


Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005)