THE INTERSECTION OF FAMILY LAW PROBATE LAW Course
THE INTERSECTION OF FAMILY LAW & PROBATE LAW Course No. : 174073639 Team 8
Competency Issues in Divorce Proceedings • Texas Estates Code Ann. § 1002. 017 • “Incapacitated Person” • Texas Disciplinary Rule of Professional Conduct 1. 02(g) • A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative, for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client. • Texas Disciplinary Rule of Professional Conduct 1. 05 cmt. 17 • The client may or may not, in a particular matter, effectively consent to the lawyer’s revealing to the court confidential information and facts reasonably necessary to secure the desired appointment or order.
Competency Issues in Divorce Proceedings Cont. • Wahlenmaier v. Wahlenmaier, 762 S. W. 2 d 575, 575 (Tex. 1988) • A guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce. • Texas Family Code § 6. 108 • For purposes of annulment • Standard to declare person incapacitated • Clear & Convincing Tex. Est. Code § 1101. 101
Competency Issues in Divorce Proceedings Cont. • Tex. Est. Code 1251. 001 • A Court shall appoint a temporary guardian, with limited powers as the circumstances of the case required, if the Court is presented with substantial evidence that a person may be an incapacitated person and has probably cause to believe that the person, the person’s estate, or both require the immediate appointment of a guardian.
Death During Dissolution Proceedings. Informal Marriage • Two Ways to Establish Marriage • Declaration of Marriage • Three Element Test • Agreement to be marriage • Living together in Texas as spouses • Holding out as spouses • Burden of Proof • Preponderance or evidence • Burden on person seeking to establish marriage • Once establish marriage, need to determine date of marriage & characterization of assets.
Death During Dissolution Proceedings. Informal Marriage Cont. • Severance & Separate Trials • A motion for separate trials can be filed to obtain a ruling on the informal marriage issue and then proceed with the character of the assets.
Death During Dissolution Proceedings. Informal Marriage Cont. • Summary Judgment • Assoun v. Gustafson 493 S. W. 3 d 156 • Dead Man’s Rule • Texas Rule of Evidence 601 • Need corroboration • Can be waived, if not objected to
Death During Dissolution Proceedings. Informal Marriage Cont. • Same Sex Marriages • Post Obergefell, can have same-sex common law marriage • Can same-sex couples establish a common law marriage that began prior to Obergefell ? ?
Death During the Dissolution Proceedings Possession of Marital, Now Probate Assets § Texas Estates Code § 101. 003 • § Texas Estates Code § 351. 102 • § Personal Representative is required to “collect and take possession of estate’s personal property, record books, title papers, and other business papers. ” Texas Estates Code § 351. 103 • § Personal Representative has the right to possession of all assets belonging to the Decedent's estate. Personal Representative is entitled to possession of property jointly owned by the Decedent with another party. Texas Estates Code § 101. 001, 101. 003 • The right of beneficiaries (will) or heirs (intestate) to possess assets is subject to the right or discretion of the Personal Representative during the administration.
Recovering Possession of Property Now in the Probate Estate § Texas Estate Code § 351. 102 • § The Personal Representative has a right to possession of all estate assets and a duty to acquire that possession. The Personal Representative is authorized to take action to recover property. In re Estate of Hutchins, 391 S. W. 3 d 578, 585 (Tex. App. –Dallas 212, no pet. ) citing Probate Code § 37 remedies include: • Motion for Turnover Ø The Personal Representative is entitled to possession of the estate “as it existed” on the date • of the Decedent’s death. Conversion Suit Ø If a person has no right to property. • Show Cause Ø The Personal Representative may file a Motion to Show Cause in the Probate Court exercising jurisdiction of the estate. Ø The Show Cause is a descendant of common law, allowing an Ex Parte order requiring a party in possession of the descendant's property to appear and show cause why he should not relinquish possession to the Personal Representative.
Recovering Possession of Property Now in the Probate Estate § Texas Estates Code § 353. 051 • Probate Homestead Real Estate Ø The surviving spouse or minor children who choose to exercise probate homestead are entitled to possession, regardless of the administration of the estate. The probate homestead forms no part of the estate to be administered by the Probate Court. Thompson v. Thompson, 236 S. W. 2 d 779, 788 (Tex. 1951) Probate homestead designation loses that character through abandonment, death, or alienation. Majeski v. Estate of Majeski, 163 S. W. 3 d 102, 107 (Tex. App. -Austin 2005, no pet. ) Non-Homestead Real Estate • Ø Ø Ø • The Personal Representative is entitled to possession if: The property was in possession of the Decedent at the time of his death. The party in possession does not have legal right. Donald v. Bankers Life Co. , 133 S. W. 2 d 171, 174 (Tex. Civ. App. -Dallas 1939, writ dismissed) Remedies Ø Forcible Entry and Detainer. Texas Property Code § 24. 004 o Ø Show Cause Order o Ø Can determine only immediate right of possession Can determine Personal Representative’s statutory right of possession Probate Court can determine
Death During Dissolution Proceedings. Mediated Settlement Agreements • TFC 6. 602 • (b) A mediated settlement agreement is biding on parties if the agreement • (1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation; • (2) is signed by each party to the agreement; and • (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed. • (c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, TRCP, or another rule of law.
Death During Dissolution Proceedings. Mediated Settlement Agreements Cont. • Spiegel v. KLRY Endowment Fund 228 S. W. 3 d 237 • The trial Court did not err by declaring the agreement enforceable on the plain language of the statue and the public policy underlying it, as well as the parties’ intent as expressed in the language agreement • Mediated settlement agreements do NOT need to be incorporated into a final decree • Any beneficiary designation to non-probate assets, are revoked when you have an MSA. • Hennig v. Didyk 438 S. W. 3 d 177 (2014 TX. App-Dallas) • Reminder: TFC 9. 301
Death During Dissolution Proceedings. Equitable Relief • Marshaling Assets • Tex. Est. Code 351. 151 • Possession of assets • Tex. Est. Code 101. 003 • Decedent Separate property • Decedent Sole Management Community Property • TFC 3. 102(a) • Joint Management Community Property • Spouse gets 50% analysis • Moieties: Tex. Estates Code 360. 253
Death During Dissolution Proceedings. Equitable Relief • Same Analysis as TFC • Characterization Determinations • What estate exists? • When were assets acquired? • Were separate or community funds used to purchase? • Were separate or community funds used to contribute to the asset? • Is tracing necessary to establish character? • Any claims for reimbursement?
Death During Dissolution Proceedings. Equitable Relief • Inception of Title • Acquired during marriage? Presumed community • Mutations of separate property • If separate property commingled or mutated, still separate if traceable • Mutations do not change character • Reimbursement claims • Burden of Proof: Preponderance of the Evidence • Estates Code parallels the Texas Family Code • Fraud on the community • No ill intent required
Survival of a SAPCR • Texas Estates Code 1104. 051 • If one parent is deceased, the surviving parent is the natural guardian of the person of the minor children and is entitled to be appointed guardian of the minor children’s estate. • In the interest of V. L. K 24 S. W. 3 d 338 • When the managing conservator dies, there is no presumption that the possessory conservator is awarded all of the rights and duties of the managing conservator.
Survival of a SAPCR • Standing to bring a SAPCR • 102. 003(a)(4): Guardians have the right to file a SAPCR, which means they have a right to bring a modification under 156. 002 • 102. 003 • Lists everyone who can bring a SAPCR • Modifications, 156. 002(b): a person or entity who, at the time of filing, has stating to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction.
Survival of a SAPCR • Modifications • TFC 153. 131, parental presumption only applied to original SAPCRs. In re V. L. K • Grounds for modifications • TFC 156. 101 • Rolle v. Hardy 527 S. W. 3 d (Tex. App-Houston [1 st Dist] 2017) • Standard to grant a modification is not material & substantial change, it is significant impairment • In the Interest of C. A. M. M. 243 S. W. 3 d 211(Tex. App. - [14 th Dist] 2007). • Grandparents filed a Petition to Modify & upheld.
Survival of a SAPCR • Writ of Habeas Corpus • Greene v. Schuble 654 S. W. 2 d 436 (Tex. 1983) • In the absence of a specific provisions to the contrary in an order establishing conservatorship, the death of the managing conservator ends the conservatorship order and it no longer constitutes a valid, subsisting court order. • Who has the right to IMMEDIATE possession of the children.
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