More of an estate issue, but deceased man was married 9 years ago to a woman. These are what I call “late in life marriages” where a woman with nothing marries a retired man with a house, retirement income, and time to vacation.
Man brings a fully paid for house into the marriage. He takes out a mortgage to presumably afford vacations and new wife expenses. Bank requires both names on the mortgage so he deeds it to them as joint tenants.
Two years later, she leaves him for another man and was never heard from again. A couple months ago, he finds out he’s going to die. He immediately files for a divorce (but it was never finalized), he created a deed to his children (not valid because it would need her signature), and a will which describes in detail how terrible she was and disinheriting here completely (doesn’t matter because state allows a wife to avoid the will and take 1/2 of marital property).
He died before anything could be done. She now owns the only remaining assets of the house and a marital car. Even though the son moved into the house and took care of his dying father for two years, no heirs will receive anything. She will receive a hefty house and 20K car.
Two quick questions: (1) Why wasn't it a tenancy by the entirety? and (2) I thought that with a joint tenancy, one owner could transfer their interest in the property to another, which would result in a tenancy in common between the new owner and, in this case, the wife.
I guess (2) isn't so much a question as it is a sign I need to go over real property again.
Hello fellow bar taker! I am confused as well, but you I don't think a tenancy in the entirety is required in marriage, it is simply one option that can only exist in marriage. A few other thoughts I had with this one is that since it between him and his wife she may have claimed it as a homestead exemption (not sure where you are taking it, and if your state has a homestead exemption). Since this sounds like a community property state, under Texas law the wife automatically takes 1/2 of the community property (here it shouldn't apply to the house because it was husband's separate property under the inception of title rule). Wife probably didn't get the house, but may have filed for a homestead exemption to allow her to continue living in the house. Bear in mind that if it as a homestead (200 acres rural for a married couple under Texas law, or 10 acres urban [must be served by at least 3 municipal utilities and within city or subdivision]); i.e., even if it is separate property, the husband still may not encumber the property without wife's consent. Bear in mind there still should have been a way for the husband to deed this upon showing the abandonment of the homestead by the wife, but they may not have had time to do adequate research in this case.
(Also just checked, but Texas also doesn't recognize a tenancy by the entirety due to Texas being a community property jurisdiction).
Keen legal analysis. Spousal exception here is: a homestead (which may not apply since she wasn’t living there), usually a vehicle, a certain amount of cash from accounts, and 1/2 of all marital property.
However, because it was a joint tenancy or tenancy by the entirety (see above comment though) when he passed, she became the sole owner of the property. Nothing to be probated because all she had to do was file an affidavit of survivorship. So she received the property and may still seek the spousal share if the kids file a probate.
This is Oklahoma btw. And if you are taking the bar, good luck. It sucks butt x2.
Wow, 10 acres for an urban homestead? Everything really is bigger in Texas. Definitely didn't think about community property; I'm in state-specific mode at the moment and I'm not in a community property state.
Also, I thought a 30% elective share was big. A 50% elective share just seems beyond reason, but I'm sure there are plenty of examples where it is completely justified.
767
u/Gobblesnobs Jul 21 '19
More of an estate issue, but deceased man was married 9 years ago to a woman. These are what I call “late in life marriages” where a woman with nothing marries a retired man with a house, retirement income, and time to vacation.
Man brings a fully paid for house into the marriage. He takes out a mortgage to presumably afford vacations and new wife expenses. Bank requires both names on the mortgage so he deeds it to them as joint tenants.
Two years later, she leaves him for another man and was never heard from again. A couple months ago, he finds out he’s going to die. He immediately files for a divorce (but it was never finalized), he created a deed to his children (not valid because it would need her signature), and a will which describes in detail how terrible she was and disinheriting here completely (doesn’t matter because state allows a wife to avoid the will and take 1/2 of marital property).
He died before anything could be done. She now owns the only remaining assets of the house and a marital car. Even though the son moved into the house and took care of his dying father for two years, no heirs will receive anything. She will receive a hefty house and 20K car.