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Partitioning a Marital Home After an Ex-Spouse’s Death

houseIn a recent Texas divorce case, a couple was divorced in 2006. The wife initiated divorce proceedings, and the couple went to mediation. They agreed on a divorce decree and split a house and lot 50-50. The order included a procedure for selling the property, which was that the property was to be listed with a realtor. The realtor would select a price that was at least $77,000. The sale price would be reduced below $77,000 only by written agreement. If there was an offer that met the $77,000 threshold, both parties still had to accept it.

The husband had the right of first refusal of a bona fide offer by paying the woman half of the offer, minus the mortgage amount and 6% realtor fee. Either of the spouses could ask the court to appoint a receiver. The agreement also stated that if the husband failed to pay his wife half of the equity in the house within 30 days of an offer being made, the house would be sold for the offer made, with the couple splitting the funds remaining equally after the costs of the sale were paid.

When the ex-husband died in 2016, the ex-wife sued to enforce the divorce decree. She alleged that the husband had died, and the executrix of his estate had deeded the property to herself as an individual. The independent executrix of the ex-husband’s estate responded. She argued that the ex-wife wasn’t entitled to the relief she sought because the trial court didn’t have jurisdiction, and the claim was barred totally or partially by the statute of limitations or laches.

At a hearing, the ex-wife testified that she and her husband had agreed to sell the property. After the decree was signed, her son lived on the property, and during that time, she didn’t want to ask for the property to be sold. She learned that her ex-husband had died from her son and went to get a deed for the property. She saw her name was no longer on the house, and the executrix of the husband’s estate was the listed owner. The attorney for the estate asked whether the ex-wife had made mortgage or tax payments after the divorce decree, but she successfully objected to these questions on the basis of relevance. A receiver was appointed to sell the property.

The executrix appealed the order that appointed a receiver, arguing that the order altered the husband’s rights obtained during the divorce. The intermediate appellate court affirmed.

The husband’s estate argued that the lower court didn’t have jurisdiction over the ex-wife’s motion to appoint a receiver because the motion related to a secured claim that fell within the definition of a matter relating to probate. The appellate court explained that a court that enters a divorce decree continues to have the power to enforce property division in the decree under Texas Family Code section 9.002.

The estate argued the probate court had exclusive jurisdiction because the executrix, who was the husband’s surviving spouse, had a life estate interest in the property. The appellate court explained the ex-wife wasn’t trying to partition the property as an heir, but as a tenant in common. Even if the second wife had a homestead right, it was subordinate to the first wife’s right to partition the property. The appellate court affirmed the lower court’s judgment.

If your divorce involves matters related to property distribution, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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