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Oklahoma Court of Appeals Reiterates Surviving Spouse Rights

The Oklahoma Court of Civil Appeals has reiterated certain rights of surviving spouses in Probate proceedings. Surviving Spouses have always been granted special protections by our statutes.

The case involved a husband that, before he got married, transferred property into a revocable trust. Part of the property was a piece of real property referred to as “the farm”. After husband and wife married, husband, as Trustee, conveyed the farm to one of his daughters. Three statutory provisions become relevant here:

  1. When a married person conveys real property in Oklahoma, the spouse must sign the deed;
  2. When a married person dies without a Will in Oklahoma, the surviving spouse is entitled to a “forced share” that is no less than an undivided 1/2 interest in the property acquired by the joint industry of the parties;
  3.  During the administration of an estate, a surviving spouse is entitled to an “allowance”  against his/her share until the property is distributed.

Surviving Spouse first argues that the farm should be considered part of the estate because property in a revocable trust is considered to be part of the decedent’s estate. The Appeals Court ruled against her, because the “forced share” statute only allows the spouse to take half of what the parties acquired jointly as a couple. Since the house belonged to the husband’s trust prior to the marriage, it was never part of the estate that wife could claim.

Wife next argued that the conveyance was invalid, because she never joined in the deed. The Court essentially said that the wife’s claim is moot, because even if she prevails, the result will be that the land will again be the property of the trust, and it will have no effect on the Probate proceedings. Wife argued that if the property was recovered into the trust, it would be available to pay her allowance. The Court disagreed, pointing out that a surviving spouse can draw allowance only against that part of the estate that he/she will eventually receive.

Finally, wife argues that she should have the homestead right of a surviving spouse in the farm. It was undisputed that, at the time of husband’s death, the couple lived at the farm. Oklahoma allows the surviving spouse to live in the homestead for the remainder of his/her life so long as the right is not waived or abandoned. Here the Court held that the issue of title does not matter as to homestead. Even though the farm may be titled in the Trust, or even in the decedent’s daughter, the wife had the rights of homestead. The matter was sent back to the Trial Court for a determination as to whether wife had abandoned or waived her homestead rights.


Read the Decision here.

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The U.S. Supreme Court has ruled that the Takings Clause applies to personal property as well as real property. In the words of Chief Justice Roberts, “The Fifth Amendment applies to personal property as well as real property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”

Read the Opinion here.

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Nuts and Bolts of the Oklahoma Power of Attorney

I am often contacted by someone who says “I need to get a Power of Attorney for my mom”. My first question is “What is her current mental state?” About half the time, the response is that Mom has deteriorated in recent years, and has trouble with memory, not only about happenings, but about people, including family. At this point I have to tell the caller that it’s too late for a Power of Attorney, which is something given, not something taken.

A Power of Attorney is something that must be given by a person who is mentally competent to a person chosen by the person given the Power. The person who is granted the Power is referred to as the Attorney in Fact (AIF). The person giving the Power is the “Grantor”. The Power states the limits of the power (little “p”) granted to the AIF. In granting the Power (capital “P”), the person has choices to make as to the scope of powers granted, and the duration of the Power.


The powers granted fall into one or both of two categories. Financial powers, which often allow the AIF to sign and enforce agreements, write checks, enter into business transactions and make other business or financial decisions on behalf of the person granting the Power, are the most common powers given. Additionally, the Power of Attorney can grant medical powers, which allow the AIF to make routine and everyday medical decisions which do not include end of life decisions. Medical powers often allow the AIF to choose the Doctors, Hospitals and other health care providers, as well as approve medication changes for the person giving the power. Often the medical powers specify that they may be exercised only if the grantor is not capable of making the decisions for him/herself.


The issue of when a POA becomes effective and terminates usually centers on four happenings: the execution of the Power; a valid revocation; the loss of mental capacity of the Grantor; the death of the Grantor. A POA always terminates with the death of the Grantor or the valid revocation of the Power by the Grantor. To be valid, the revocation must be in writing, and must be executed while the Grantor has full mental capacity. Subject to these terminating events, the duration of the Power depends on the type of Power given. There are three types.

A General POA takes effect immediately upon execution and terminates upon the death or mental incapacity of the Grantor.

A Durable POA only takes effect upon the loss of mental capacity by the Grantor, and continues until the death of the Grantor, or until it is trumped by the imposition of a Guardianship by an appropriate Court.

A General Durable POA takes effect immediately upon execution and remains in effect, even if the Grantor loses mental capacity, until valid revocation, subsequent Guardianship or the death of the Grantor.

Powers of Attorney must fall under one of the three “Duration” types, and must specify the extent of the powers, whether financial, medical or both, and must be executed while the Grantor has full mental capacity. As for the caller, whose Mom is beyond the point of capacity, the only solution is to make application to the Court for a Guardianship.

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Change is coming to the system of access to Oklahoma Court Records. The current system is a hodgepodge, to put it mildly. Under the current scenario, Court records are accessible for the State’s 13 largest Counties through the Oklahoma Court Information System at Records for the other Counties, along with some Municipal and Tribal Courts through the Oklahoma District Court Records System, at For both systems anyone can see the Dockets (list of events) for any case, beginning with the date such records were electronically recorded, which is different for each County. For OCIS Counties, anyone can also see images of the actual documents filed, from and after the date the County began scanning the documents. The same is true for ODCR Counties, but only if you have a paid subscription. The individual Court Clerks decide, up to a pint, which records scanned and made available. (Records of Adoptions, Guardianships and Mental Health Cases, among others, are required to be sealed)

A few years ago, the Oklahoma Supreme Court issued rules that require a single uniform system for electronic storage and access to District Court Records. The pilot program (Noble County) is currently being tested. Now, however, discretion is being taken away from the Court Clerks in determining what records will be made available. Effective November 1, 2014, the Oklahoma Supreme Court is being charged with the implementation of uniform rules that will apply to all District Courts. These new rules could dramatically impact how people should approach their lawyers in the drafting an filing of documents.

Here are some examples:
-A person pleading guilty or no contest to a felony is required to complete and sign a Record of Plea form. This form contains the full name, date of birth, address and Social Security Number of the Defendant;
-In child custody cases, a wage assignment is sometimes filed, to allow for direct withholding of child support from the wages of the payor. This form contains the names, dates of birth and Social Security Numbers of the parties and the minor children;
-Orders amending birth certificates for name changes and other actions must contain, name, date and place of birth, and other information for the issuing authority to amend the records.

Once the new rules are in place and implemented, every public document filed in any Oklahoma Court, will be scanned and made available to anyone with a computer anywhere in the world. The best advice to anyone is to avoid the rush and begin practicing vigilance now. Tell your lawyer you want to review every document that will be filed at the Courthouse, and look for the inclusion of any personal identification data. If it is there, see if it can be redacted, at least partially (only the last 4 digits of account numbers and Social Security numbers). If not, see if it will be a “public record” accessible by internet download. In extreme cases, you can ask your attorney to file the document(s) under seal. This will cost more money, and will require extra care, but will be well worth it in the long run.

Finally, pay attention to the rules creation process. Prior to implementation, the Supreme Court will publish proposed rules, and ask for comments and input from the public. The best way around a bad rule is to prevent it from being enacted in the first place.

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7th Circuit Says Promise Not to Sue on Time-Barred Debt May be Violation of Federal Law

The 7th Circuit Court of Appeals, which includes the States of Illinois, Indiana and Wisconsin, has issued a decision which conflicts with at least one other Circuit.  The 7th Circuit has ruled that a debt collector that promises not to sue on a time-barred debt is engaging in an “unfair collection practice” under the Fair Debt Collections Practices Act.

Debts that are based on contract (credit cards, personal loans, etc) are subject to a Statute of Limitations. (In Oklahoma the deadline for bringing an action on such a debt is three years if verbal and five years if written).  Once the deadline is passed, the debt becomes unenforceable.   However the debt can still be made enforceable if “acknowledged” or “ratified” by the person that owes the debt.  When a creditor files an action on a debt that is beyond the Statute of Limitations, the debtor has an “affirmative defense”, meaning the debtor must assert the defense at the beginning of the suit.  If the debtor fails to assert the defense of “Statute of Limitations”, and proceeds to defend the suit, the defense is lost, and the debtor cannot assert it later.

The 7th Circuit has now held that if a creditor offers to settle an outdated debt in exchange for not filing a lawsuit on the debt, the creditor is misleading the debtor into believing that the claim is still legally viable, even though the litigation would be dismissed upon assertion of the defense.

When dealing with debt collectors, ALWAYS demand the verification of the debt from the original creditor, and always determine the date of the first alleged breach (the date of the first missed payment).  The date of first breach is usually the beginning of the Statute of Limitations period.

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Different Rules Apply to Generic Labels

The U. S. Supreme Court has held that generic drug makers do not have the same requirements for warning labels as the makers of brand name drugs.  In a 5-4 decision, the Court denied the “failure to warn” claim of two women who developed a neurological disorder after taking a generic form of a prescription drug.

The Food and Drug Administration has a different standard for brand name drug warnings and generic drug warnings.  For generic drugs, the FDA requires that labels carry the same warnings as those approved by the FDA for the brand name counterpart.  Brand name drug makers that become aware of health and safety risks after approval can take certain measures to change or add warnings through a variety of FDA procedures.  Generic drug makers cannot, by FDA rules, use these procedures, even if additional risks become known.  The end result is that if a generic drug maker knows of risks not disclosed on the label, it is a violation of Federal law to add or change it’s warnings to the user of the drug.  Only the brand name maker can enlist the FDA procedures, and after changes are approved for the brand name, the generic maker must then change it’s label to match the label of the brand name.

Even though this area of the law is not one in which I have a lot of familiarity, the lesson to be learned is that if you are using generic drugs, you should research whether or not there is recent literature that indicates risks of the brand name counterpart that are not disclosed on the label.  A good way to do this is to ask your prescribing physician, who may have access to medical studies that have yet to make their way to the FDA.