faqs about certificate requests€¦ · /faqs_about_certificate_requests.pdf for detailed...

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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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Page 1: FAQs About Certificate Requests€¦ · /FAQs_About_Certificate_Requests.pdf for detailed information about obtaining CE and CLE credit in accordance with P-28. ... without losing

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

Page 2: FAQs About Certificate Requests€¦ · /FAQs_About_Certificate_Requests.pdf for detailed information about obtaining CE and CLE credit in accordance with P-28. ... without losing

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:

[email protected]

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:

[email protected]

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

[email protected]

or

[email protected]

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