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Please see our FAQ page at:
http://www.stewart.com/content/dam/stewart/Microsites/texas/pdfs
/FAQs_About_Certificate_Requests.pdf
for detailed information about obtaining CE
and CLE credit in accordance with P-28.
In order to access the FAQs, you must copy
and paste the above link into a Google Chrome
Browser
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If you have questions after the presentation, please e-mail the presenter or your favorite Texas underwriting counsel.
In order to obtain a CE Certificate or CLE Credit, you must listen for the password provided at the end of the presentation and follow the instructions as given.
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ATTORNEY INFORMATION
Because of opinions expressed by the Texas Insurance Department
concerning rebates, legal credit is available only to:
Attorneys who own title agencies that are Stewart Title Guaranty
Agents
Attorneys employed by a title insurance agent licensed with Stewart
Title Guaranty or Stewart entities
Fee attorneys who have an Escrow Officer license through a
Stewart Title Agent or Stewart entity
We welcome any other lawyers to listen, but cannot provide
continuing education credit to you.
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LOVE, DEATH &
EVERYTHING IN
BETWEEN: TEXAS
MARITAL PROPERTY
Richard L. Black
Associate Senior
Underwriting Counsel
Austin, Texas
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See Stewart Title Guaranty Company Bulletin No.
SLS2015018 dated 12/10/2015.
Obergefell v. Hodges--U.S. Supreme Court case decision on
June 26, 2015:
--Same-sex couples have a legal right to marry.
--Same-sex marriages performed in one state must be
recognized in other states.
--Marital property laws covering heterosexual married
couples now apply equally to same-sex spouses.
Same-Sex Marriage and Marital Property
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TEX. FAMILY CODE §3.001: “A spouse’s separate property
consists of:
(1) the property owned or claimed by the spouse before
marriage; [and]
(2) the property acquired by the spouse during marriage
by gift, devise, or descent; . . .”
IN OTHER WORDS: Whatever a spouse brings to the
marriage OR whatever is gifted to or inherited by him/her
during marriage.
Whose Is Whose: What Is Separate Property in
a Marriage?
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Yours, Mine and Ours: What Makes Up
Community Property in a Marriage?
TEX. FAMILY CODE §3.002: “Community property consists
of the property, other than separate property, acquired by
either spouse.”
TEX. FAMILY CODE §3.003: Property possessed by either
spouse during or at dissolution of the marriage is presumed
to be community property, but this presumption can be
overcome by “clear and convincing evidence” of its separate
property character.
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(1) “Inception of Title” defines acquisition before
marriage versus during marriage.
(2) Property can be changed from one form to another
without losing its separate or community character.
(3) “Commingling” separate and community is bad!
(4) Ownership of real property can be shared between
the couple’s community estate and one spouse’s separate
estate (TEX. FAMILY CODE §3.006).
Texas Rules to Marry By: Basic Marital Property
Concepts
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--Joint Community: Community property held in both
spouses’ names is under joint management and control.
--Wife’s Special Community: Community property held
only in wife’s name is under her sole management and
control UNLESS it is homestead.
--Husband’s Special Community: Community property
only in husband’s name is under his sole management and
control UNLESS it is homestead.
In Control: Who Is in Charge of Community
Property?
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TEX. FAMILY CODE §4.003: Spouses may contract
between themselves with respect to:
(1) rights and obligations of each of them in any property
of either or both of them;
(2) right to buy, sell, mortgage, or otherwise manage and
control property; or
(3) disposition of property on separation, divorce, or
death.
Changing the Rules: Premarital Agreements
and Marital Property
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TEX. CONSTITUTION, art. 16, §51: RURAL homestead for
a “family” is up to 200 acres (can include non-contiguous
parcels); URBAN homestead for everyone is up to 10 acres
(one lot or series of contiguous lots).
--With or without children, a married couple constitutes a
“family” under §51.
--Homestead can be composed of community property of
both spouses, separate property of one spouse, or
community and separate property combined.
Home, Sweet Home: Marital Homestead
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TEX. FAMILY CODE §5.001:
--General Rule: One spouse cannot sell, convey, or
mortgage marital homestead unless the other joins.
--This rule applies whether the homestead is community
property of both spouses or separate property of one
spouse.
--Exceptions:
(1) “Unusual circumstances”; or
(2) Judicial declaration of spouse’s incapacity.
Selling and Mortgaging Marital Homestead
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TEX. FAMILY CODE §§5.101—5.106:
--One spouse has disappeared, location unknown;
--One spouse has permanently abandoned homestead
and other spouse;
--Spouse has permanently abandoned homestead, and
spouses are permanently separated; or
--Spouse is a POW or otherwise missing on U.S.
government service.
“Unusual Circumstances”: One Spouse
Selling/Mortgaging Marital Homestead
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TEX. FAMILY CODE §§5.103—5.106:
--Petition cannot be filed until 60 days after triggering
event (disappearance, abandonment, etc.);
--Applies to community property homestead OR separate
property homestead belonging to petitioning spouse;
--Citation and notice of hearing required and possibly
attorney ad litem for other spouse;
--Court’s order can authorize sale or mortgage of
homestead WITHOUT joinder of other spouse.
“Unusual Circumstances”: The Statutory
Procedure
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TEX. FAMILY CODE §5.002: Competent spouse may sell
his/her separate property homestead WITHOUT joinder of
the other when a judge has declared the other spouse to be
incapacitated.
TEX. ESTATES CODE §§1353.002: When one spouse has
been judicially declared incapacitated, competent spouse is
empowered to dispose of the couple’s community property,
including the incapacitated spouse’s Special Community.
Judicial Declaration of Spouse’s Incapacity
(Guardianship of Spouse’s PERSON)
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Joinder of non-purchasing spouse in a purchase money
Deed of Trust can be waived, even when property is being
acquired to become marital homestead, whenever:
--signing spouse is sole grantee of the Warranty Deed;
--Deed contains a Vendor’s Lien for the loan; AND
--loan is limited to purchase money and allowable
closing costs.
See Skelton v. Washington Mutual Bank, F.A., 61 S.W.3d 56
(Tex.App.--Amarillo 2001):
--Underwriting approval is required
Keeping It Simple: Waiving Non-Purchasing
Spouse’s Joinder
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TEX. FAMILY CODE §3.202(a): “A spouse’s separate
property is not subject to the liabilities of the other spouse
unless both spouses are liable by other rules of law . . .”
--One spouse’s separate property real estate is NOT
subject to debts incurred solely by the other spouse prior
to or during marriage.
--One spouse’s Special Community real estate may be
subject to debts incurred by the other spouse.
Woe Is Us: Judgment Liens, Tax Liens, and
Marital Property
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TEX. ESTATES CODE §112.051—123.052: Spouses in
Texas may agree that their community property automatically
passes to the survivor when one of them dies.
--Requires a written agreement signed by both spouses;
--Agreement is revocable by either spouse;
--Agreement can be “adjudicated” after one spouse dies.
“Joint Tenants With Right of Survivorship”: This phrase
after grantees’ names in a deed accomplishes nothing in
Texas unless grantees also sign the deed.
Texas Ain’t California: Community Property
With Right of Survivorship
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TEX. FAMILY CODE Sec. 2.401(a)—How to achieve an
informal marriage:
--Both partners sign a statutory declaration of marriage
and file it in their County Clerk’s Office; OR
--the partners take the Magic Three Steps:
(1) Partners agree between themselves to be married;
(2) they then live together in Texas as spouses; and
(3) they hold themselves out to others as being married.
Informal Marriage a/k/a “Common Law
Marriage”
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Aspects of Informal Marriage:
--Not allowed for a person younger than 18 years of age;
--Once achieved, an informal marriage ends only with the
death of one spouse or formal decree of divorce;
--After death or separation, a presumption AGAINST any
agreement for informal marriage arises two years later
if neither partner has proven the marriage’s existence in
a judicial or administrative proceeding.
On the Cheap: More “Marriage Without
Formalities”
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TEX. FAMILY CODE §7.001: In divorce, a “just and right
division” is to be made of the “estate of the parties”, i.e. their
community estate.
--Separate property is not subject to being divested from
one spouse and awarded to the other, but a judicial lien
may be imposed to secure a monetary award.
--Confirmation of separate property ownership in the
Decree of Divorce is desirable, but not essential when
separate property character is obvious in the record.
Bliss Gone Amiss: SEPARATE Property and
Divorce
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TEX. PROPERTY CODE §12.005: A court order partitioning
land must be filed for record with the County Clerk in the
county where the land is located.
--Prewitt v. U.S., 792 F.2d 1353 (5th Cir.—1986): Decree
of Divorce awarding real property is a partition judgment
and must be recorded in County Clerk’s real estate
records to put divested spouse’s creditors on notice.
Stafford v. Lunsford, 53 S.W.3d 906 (Tex.App.—2001):
Attorney malpractice!?!?
Bliss Gone Amiss: COMMUNITY Property and
Divorce
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TEX. ESTATES CODE §201.003: (effective 9-1-1993)
--Deceased spouse’s one-half passes to the surviving spouse
whenever:
(1) decedent dies without any surviving child or other
descendant or
(2) all of decedent’s children are also natural or
adopted children of the surviving spouse.
--Decedent’s one-half passes to ALL of his/her children if one or
more are not also children of the surviving spouse.
(3) What happens if decedent has three kids with surviving
spouse, who has two kids from a prior marriage – law appears to
be silent on this point.
When Death Do Us Part: Intestate Distribution
of COMMUNITY Real Property
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TEX. ESTATES CODE §§201.001—201.002
--Deceased spouse is survived by spouse and
descendants: 1/3 life estate to spouse, and balance of real
estate goes to descendants.
--Decedent is survived by spouse, but no descendant:
1/2 to spouse, and to parents or parent+siblings or siblings
and descendants of deceased siblings.
--No surviving parent, sibling, or descendant of deceased
sibling: Surviving spouse gets 100%!
When Death Do Us Part: Intestate Distribution
of SEPARATE Real Property
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TEX. ESTATES CODE §453.003: Without formally
qualifying in probate court, surviving spouse has power to
“sell, mortgage, lease, and otherwise dispose of community
property to pay community debts.”
--Power derives from status as “surviving partner of the
marital partnership.”
--Power disappears whenever formal administration of
deceased spouse’s estate is opened.
--Best application: Deed in Lieu of Foreclosure.
Resting in Peace: Surviving Spouse and
Community Property
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TEX. ESTATES CODE §§102.002—102.006: Surviving
spouse has right to use or occupy the marital homestead
after death of the other spouse.
--Does not change how the deceased spouse’s interest
passes either by will or intestate succession.
--Prevents deceased spouse’s heirs from partitioning or
selling property that was the marital homestead.
--Terminates when survivor dies, sells his/her interest in
the homestead, or ceases using/occupying it.
A Place to Call Homestead: Surviving Spouse’s
Rights After Death of One Spouse
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To Receive CE Credit Each individual seeking credit hours must send their own certificate request to:
Please include the following information: • Provide only this Presentation Name in the Subject Line of your e-mail –
“Love, Death and Everything In Between” In the body of your e-mail: • Name of Participant (as it appears on your Escrow Officer License); • Presentation PASSWORD given at the end of the webinar;
• License Number Only (located on left side of Escrow Officer Certificate of License – for example: License Number: 1234567-890123)
For Attorney CLE Credit also include: • Texas State Bar Number • Affiliation with Stewart
– Employed by Stewart Title Guaranty Company; – an affiliate; or – a Stewart agent
For more details, see the FAQs at:
http://www.stewart.com/content/dam/stewart/Microsites/texas/pdfs/FAQs_About_Certificate_Requests.pdf
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Please contact us ONLY if you haven’t received your
certificate within 10 business days at:
You can access the full presentation materials 10 business
days after this presentation as well as all current courses at: www.stewart.com/texas
under the “Texas TIPS” tab
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Next Month’s Texas TIPS Online presentation is
July 21, 2016
“Is It Ethical” presented by:
John Rothermel and Heidi Junge
This webinar has been approved for 1 hour of Ethics
through the TDI and the State Bar
For Questions/Comments Email
or
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