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In Texas, real property acquired during a marriage is presumed to be community property, unless it was acquired by one of the parties by gift or inheritance. It sounds like the case can be made that this particular property was acquired by the wife by gift, hence it would be her separate property. However, providing sufficient proof of that supposition to the title insurance underwriter may be easier said than done.
Frankly, this happens quite frequently. Usually the heirs of the deceased spouse will convey (or quitclaim) whatever interest they may have acquired to the surviving widow, but this assumes that said heirs are reasonable people who, when given the opportunity, will do the right thing. Unfortunately, it appears that isn't the case here.
The title company is obligated to its underwriter to raise this potential title defect, which they have done. They have required either splitting the proceeds with the estranged child, or getting the estranged child to convey her interest to the surviving widow prior to closing. The reason they have done this is that title companies do not make money by paying claims, and ignoring this title defect would result in risk exposure that runs well outside the underwriter's guidelines.
If this file came across my desk as a title examiner in Texas, I would make the same requirement.
It wouldn't hurt to talk to the title company and determine what sort of proof they would need to deem this property as separate. If the deed into the surviving widow was not clearly a deed of gift (unambiguous granting language of gift, with "love and affection" as the consideration, with an express statement that the property is to be the separate property of the grantee), then there may be nothing that will satisfy them that the property was the separate property of the widow.
One possibility: Would the estranged child sign a deed to the surviving widow for a token slice of the proceeds, perhaps $1,000, or some similar amount?
If neither of those do the trick, then you'll probably need to talk to a lawyer about a civil action to determine ownership of this property.
Can someone offer any help.
Here's the break down.
Married older couple, no children from marriage, but both have children from previous relationships.
Husband and wife living in separate residences. Wife's children buy her a house, wife is the only person on the deed.
Husband dies with no will.
Wife attempts to sale house and is halted at the day of the closing by the Title company with the news that due to community property and husband dying intestate the child from husband's previous relationship will either get half of the proceeds of the sale or need to relinquish her rights by deeding her rights to wife.
Child out of wedlock is estranged and definitely unwilling to do anything "nicely"
Is there a case for the house being gifted by wife's daughter to ONLY the wife thus making it separate property and not community property?
Has anyone run into anything like this before?
I mean you lose your husband and then half your money from the sell of your house come'on
A lot of people don't believe that they need any legal advice when buying a house. This is a good example of why that notion is often wrong.
A lot of people don't believe that they need any legal advice when buying a house. This is a good example of why that notion is often wrong.
Well, in Texas - its less common to need an attorney, and I am an attorney saying that. Our title companies employ attorneys to find the defects in title, and then use an attorney to make the deeds....I am quite thankful we do not need attorneys in our transactions, it *usually* makes things run more smoothly....attorneys tend to be very picky, and want to modify the contracts, and it just really slows the process down, and offers little value.
In this case it looks to me like the house is likely separate property, but the title company is going to require the seller to prove it was actually separate property prior to issuing the title insurance. It makes complete sense to me. Why would the title insurer take the risk of litigation?
An attorney can clear this up, but it will take time. If the descendant can not be convinced to just sign a quit claim deed, then an action to quiet title may be necessary.
It may seem messy to a lay person, but this is actually quite common and should be well within the capabilities of even a mediocre attorney.
The home's title is the only thing which matters. Wife owned home titled only in wife's name only. Husbands kids are not entitled to that home after his death. Husbands home was in his name only he dies then it goes to probate since he had no will most states put the living spouse first in line but that can be contested for example you get married haven't seen your spouse in 10 years and you die spouse shows up wanting property kids who lived with you for last 10 years have rights in that probate case. You don't exactly say if the home you are selling is the one you owned entirely with your name only on the deed or your husbands home.
If a home is titled in husband and wife or any 2 people for that matter doesn't have to be married there are two types Tenants in Common which means each person is 50% owner if one dies that person's will dictates who gets the 50% or if no will has been made then goes to probate. If the title is in Joint Tenants the most common form when one spouse dies the other automatically becomes 100% owner of the property and wills or probate can't touch that property it doesn't matter who paid the bills or someones kids are upset they have no rights only the person who's name is on the deed.
Not true, in community property states. Also not having a will will make everything revert to state law disposition of estate.
Not true, in community property states. Also not having a will will make everything revert to state law disposition of estate.
State law usually ends up with living spouse they can contest if they lived estranged. Ether way going to probably cost more in legal fees then the home is worth.
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