DEATH AFTER DIVORCE - Dallas Probate Lawyer

1 DEATH AFTER DIVORCE . Written by: MARY C. BURDETTE*. Calloway, Norris, Burdette & Weber 3811 Turtle Creek Blvd., Suite 400. Dallas , Texas 75219. (214) 521-1520. PAULA K. LARSEN*. Goranson, Bain, Larsen, Greenwald, Mault 8150 N. Central Expressway, Suite 1850. Dallas , Texas 75206. (214) 373-7676. State Bar of Texas nd 32 ANNUAL ADVANCED. ESTATE PLANNING AND Probate COURSE. June 11-13, 2008. Dallas CHAPTER 32. *The authors express their appreciation and gratitude to Nikki Wolff and Lindley Bain for their invaluable assistance with the preparation of this outline. MARY C. BURDETTE. Calloway, Norris, Burdette & Weber 3811 Turtle Creek Boulevard, Suite 400.

2 Dallas , Texas 75219. 214-521-1520 214-521-2201 Fax AREAS OF PRACTICE. Probate , Trust and Fiduciary Litigation, Estate Administration, Guardianships, including Contested Guardianships; Wills and Trusts EDUCATION. Juris Doctor Degree, cum laude, from Southern Methodist University School of Law 1982; Phi Delta Phi scholastic honorary fraternity; Order of the Coif; Notes and Comments Editor, Southwestern Law Review Bachelor of Science Degree in Accounting, summa cum laude, from the University of Texas at Dallas 1978. PROFESSIONAL HISTORY. Admitted to the State Bar of Texas by the Supreme Court of Texas, November 1982.

3 Calloway, Norris, Burdette & Weber, Partner from 1994 to present Thompson & Knight, Tax and Estate Section, 1982-1994 (Shareholder from 1987). Board Certified Estate Planning and Probate Law - Texas Board of Legal Specialization Board Certified Tax Law - Texas Board of Legal Specialization Certified Public Accountant Chair of Probate , Estates & Trust Section, Dallas Bar Association 2003-2004. Council Member, Real Estate Probate & Trust Law Section, State Bar of Texas 2004-2008. Fellow, American College of Trust and Estate Counsel Member, Advanced Estate Planning & Probate Planning Committee, State Bar of Texas Member, Wills and Probate Planning Committee for The Center For American and International Law Member, Texas Board of Legal Specialization Estate Planning and Probate Law Legal Assistant Exam Commission (1999-2004).

4 TABLE OF CONTENTS. I. INTRODUCTION.. 1. II. JURISDICTION OVER ACTIONS AFTER DEATH OF PARTY TO DIVORCE .. 1. A. Family .. 1. 1. DIVORCE Pending at .. 1. 2. Post- DEATH Proceedings.. 1. a. Property Division and Other Obligations.. 2. b. Child Support ( Suit Affecting Parent/Child Relationship ).. 2. B. Statutory Probate Courts.. 3. 1. Statutory Jurisdiction.. 3. a. Exclusive .. 3. b. Concurrent Jurisdiction.. 3. c. Suits Appertaining and Incident to an .. 3. d. Transfer Power.. 3. 2. DIVORCE Pending at .. 4. 3. Post- DEATH Proceedings.. 4. a. Property Division and Other .. 4. b. Child .. 4. III. PROCEEDINGS AFTER DEATH OF DIVORCED.

5 4. A. Child .. 5. 1. Child Support .. 5. 2. Future Child Support .. 5. B. Other Obligations Under DIVORCE Decree at DEATH .. 5. 1. Property Division.. 5. 2. Contractual Alimony.. 5. 3. Life Insurance.. 6. 4. Contract to Devise or Will.. 6. 5. Funds to Former Spouse In Trust for Benefit of .. 7. 6. Decedent's Assumption of Community .. 8. IV. CREDITORS CLAIMS IN Probate .. 8. A. Independent Administrations.. 8. 1. Presentment of Claims By Secured .. 8. 2. Presentment of Unsecured Claim.. 8. 3. Enforcement of Claims by Suit.. 9. 4. Liability of Independent Executor.. 9. 5. Unliquidated .. 9. B. Dependent.

6 9. 1. Notices.. 9. 2. Presentment of .. 9. 3. Exceptions to .. 9. 4. Action by Personal Representative with Respect to Claims.. 9. a. Form of .. 10. b. Objections to the Form of .. 10. c. Endorsement of Claim.. 10. d. Limitations on .. 10. e. Rejected Claims.. 10. f. Classification of Claims.. 11. (1) Duty of Personal .. 11. (2) Classification of Claims.. 11. 5. Claims for Child Support.. 11. a. Child Support Accrued Before .. 11. b. Child Support Accrued AFTER .. 12. c. Credit for Social Security DEATH .. 12. d. Priority of claims for child support, family allowance.. 12. 6. Debts Due to the United States.

7 12. 7. Order of Payment of Claims.. 13. 8. Secured .. 13. a. Election by Secured Creditor.. 13. b. Time for .. 13. c. Matured Secured .. 13. d. Preferred Debt and Lien.. 13. V. FAMILY RIGHTS AND ASSETS.. 13. A. Exempt Assets.. 13. 1. Action by Personal Representative.. 13. 2. Delivery of Exempt Assets.. 14. B. Homestead Rights.. 14. 1.. 14. 2. Partition of .. 14. Homestead Free from Debts.. 14. C. Title to Exempt .. 15. D. Setting Allowances.. 15. 1. Family .. 15. 2. Allowances in Lieu of Exempt Property.. 16. VI. NON- Probate ASSETS.. 16. VII. EFFECT OF DIVORCE DECREE ON FORMER SPOUSE DESIGNATIONS.

8 17. A.. 17. B. Life .. 17. C. IRA and Retirement .. 17. VIII. WHO SHOULD BE THE PERSONAL REPRESENTATIVE?.. 18. DEATH AFTER DIVORCE Chapter 32. DEATH AFTER DIVORCE : to-be former spouse. However, the Dallas I. INTRODUCTION County Standing Order prevents changing Issues can arise upon the DEATH of one party to a life insurance beneficiaries during the final DIVORCE decree where there are unsatisfied pendency of the DIVORCE . payments, unfulfilled obligations, obligations to be When temporary orders have been issued regarding performed at DEATH , child support arrearages, and future minor children, they are not affected by the dismissal of child support payments owed.

9 In general, the Texas the DIVORCE action. The family court does not retain Family Code governs circumstances affecting family jurisdiction over the child pursuant to the DIVORCE relationships and property prior to DEATH , and the Texas action, but pursuant to its continuing authority to act in Probate Code addresses such issues AFTER DEATH . the best interest of the child until a court with However, these worlds may collide when, AFTER a permanent jurisdiction makes a final determination. In DIVORCE , one of the former spouses dies, and Dohrn, the court stated that the DEATH of a conservator unanticipated consequences may result.

10 This paper does not terminate the continuing jurisdiction of the identifies some of the issues that may arise and court that rendered the decree over the children because discusses applicable rules and principles in an effort to they are still subject to further orders and supervision assist family law attorneys in planning and drafting by the court as long as they are minors. Dohrn, 941. agreements incident to a DIVORCE and decrees, estate at 248. There generally is no custody planning attorneys in advising and drafting estate determination to be made if only one parent dies planning documents, and Probate attorneys in because the other parent is the natural guardian of his or administering estates involving these issues.