# Lofton v. Lofton > Court of Appeals of Arkansas · March 2, 1988 · 23 Ark. App. 203 URL: https://www.frixlaw.com/law-library/cases/9779204 ## Case - **Full name:** Mary R. LOFTON v. Floyd J. LOFTON - **Court:** Court of Appeals of Arkansas - **Decided:** March 2, 1988 - **Citations:** 23 Ark. App. 203; 745 S.W.2d 635; 1988 Ark. App. LEXIS 121 - **Precedential status:** Published - **Opinion:** Concurrence by Corbin - **Judges:** Mayfield, Corbin, Jennings, Coulson - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779204 ## Opinion text Donald L. Corbin, Chief Judge, concurring. I am sympathetic to Judge John Jennings’ dissent, as I believe it is more reflective of how the general public would view such situations. While I don’t have any reliable statistics available, my own best guess would be that 99 % of our Arkansas citizens would favor Judge Jennings’ position. I suspect that in all but a few cases there is no intent to make an absolute gift of one-half interest where one spouse deposits inherited funds into a joint account. It is typically done as a matter of convenience with the only legal consideration being the avoidance of probate. I find it hard to believe that the donor, and for that matter, the donee, ever consider the ownership as being anything other than in the spouse who inherited the money in the first place. However, I am constrained to follow the majority as I believe it is the more correct of the two positions under prior cases. I write separately only to point out that despite the somewhat confusing manner in which past cases have been decided, our decision in the present case expressly recognizes the viability of the rebuttable presumption doctrine as it relates to property held in the names of husband and wife. We also recognize that the standard required to rebut the presumption is quite burdensome. For this reason, I feel that the majority opinion clearly charges a spouse, who causes non-marital property to be taken in the joint names of the spouses, with constructive knowledge that upon divorce such property will be divided equally pursuant to Arkansas Statutes Annotated § 34-1215 (Supp. 1985). The only exceptions to such division exist where the donor spouse produces evidence which is so clear, direct, weighty and convincing that the chancellor, without hesitation, can determine that no gift to the donee spouse was intended or that the donor spouse was fraudulently induced to cause the property to be taken in joint names. I note that the majority opinion effectively overrules the language in Hayse v. Hayse, 4 Ark. App. 160 -B, 630 S.W.2d 48 (1982) derived from the supreme court decision of McEntire v. Estate of McEntire, 267 Ark. 169 , 590 S.W.2d 241 (1979), placing the burden on the donee to prove that a gift was made. I am convinced that the presumption applies equally to real and personal property. Because the standard to rebut is so burdensome, I am of the opinion that the clearest and most convincing evidence that can be presented in rebuttal of the presumption may be antecedent or contemporaneous declarations tending to prove that the intention was not to make a gift. See Hubbard v. McMahon, 117 Ark. 563 , 176 S.W. 122 (1915). Because of the confusion generated by the prior decisions in this area, I would also invite the supreme court to review our decision in an effort to clarify the state of the law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779204. Public record. Not legal advice.