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.

Find more information at the Oklahoma Law Website

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OKLAHOMA COURTS TO GET UNIFORM PRIVACY RULES

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 http://www.oscn.net. Records for the other Counties, along with some Municipal and Tribal Courts through the Oklahoma District Court Records System, at http://www.odcr.com. 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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