Bill Text: IA HF520 | 2015-2016 | 86th General Assembly | Introduced
Bill Title: A bill for an act relating to real property by abolishing dower and curtesy, modifying the elective share of a surviving spouse, and eliminating the surviving spouse's statutory share of the homestead.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2015-03-05 - Introduced, referred to Judiciary. H.J. 475. [HF520 Detail]
Download: Iowa-2015-HF520-Introduced.html
House File 520 - Introduced HOUSE FILE BY DUNKEL A BILL FOR 1 An Act relating to real property by abolishing dower and 2 curtesy, modifying the elective share of a surviving spouse, 3 and eliminating the surviving spouse's statutory share of 4 the homestead. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 2422YH (5) 86 jh/sc PAG LIN 1 1 Section 1. Section 232.82, subsection 1, Code 2015, is 1 2 amended to read as follows: 1 3 1.Notwithstanding section 561.15, ifIf it is alleged by 1 4 a person authorized to file a petition under section 232.87, 1 5 subsection 2, or by the court on its own motion, that a parent, 1 6 guardian, custodian, or an adult member of the household in 1 7 which a child resides has committed a sexual offense with or 1 8 against the child, pursuant to chapter 709 or section 726.2, 1 9 or a physical abuse as defined by section 232.2, subsection 1 10 42, the juvenile court may enter an ex parte order requiring 1 11 the alleged sexual offender or physical abuser to vacate the 1 12 child's residence upon a showing that probable cause exists to 1 13 believe that the sexual offense or physical abuse has occurred 1 14 and that substantial evidence exists to believe that the 1 15 presence of the alleged sexual offender or physical abuser in 1 16 the child's residence presents a danger to the child's life or 1 17 physical, emotional, or mental health. 1 18 Sec. 2. NEW SECTION. 558.73 Dower and curtesy abolished. 1 19 Dower and curtesy are abolished in this state. 1 20 Sec. 3. Section 561.11, Code 2015, is amended to read as 1 21 follows: 1 22 561.11 Occupancy by surviving spouse. 1 23 Upon the death of either spouse, the survivor may continue to 1 24 possess and occupy the whole homestead until it is otherwise 1 25 disposed of according to law, but the setting off of the 1 26 distributive share of the survivor in the real estate of the 1 27 deceased shall be such a disposal of the homestead as is herein 1 28 contemplated. 1 29 Sec. 4. Section 561.13, Code 2015, is amended by striking 1 30 the section and inserting in lieu thereof the following: 1 31 561.13 Conveyance or encumbrance. 1 32 A conveyance or encumbrance of, or contract to convey or 1 33 encumber the homestead, if the owner is married, is valid, even 1 34 if the spouse of the owner who is not a titleholder of the 1 35 homestead does not execute the same or a like instrument, or 2 1 a power of attorney for the execution of the same or a like 2 2 instrument. 2 3 Sec. 5. Section 597.5, Code 2015, is amended to read as 2 4 follows: 2 5 597.5 Attorney in fact. 2 6 A husband or wife may constitute the other spouse as the 2 7 husband's or wife's attorney in fact, to control and dispose of 2 8 the husband's or wife's property, including the relinquishment 2 9 of homestead rights and surviving spouse's statutory share in 2 10 the homestead, as provided in section 561.13,for their mutual 2 11 benefit, and may revoke the appointment, the same as other 2 12 persons. 2 13 Sec. 6. Section 598.33, Code 2015, is amended to read as 2 14 follows: 2 15 598.33 Order to vacate. 2 16Notwithstanding section 561.15, theThe court may order 2 17 either party to vacate the homestead pending entry of a decree 2 18 of dissolution upon a showing that the other party or the 2 19 children are in imminent danger of physical harm if the order 2 20 is not issued. 2 21 Sec. 7. Section 614.14, subsection 1, Code 2015, is amended 2 22 to read as follows: 2 23 1. If an interest in real estate is held of record by a 2 24 trustee, a bona fide purchaser acquires all rights in the real 2 25 estate which the trustee and the beneficiary of the trust had 2 26 and any rights of persons claiming by, through, or under them, 2 27 free of any adverse claimincluding but not limited to claims 2 28 arising under section 561.13 or claims relating to an interest 2 29 in real estate arising under section 633.238. 2 30 Sec. 8. Section 614.15, subsection 2, Code 2015, is amended 2 31 to read as follows: 2 32 2. In all cases where the holder of the legal or equitable 2 33 title or estate to real estate situated within this state, 2 34 after July 1, 1981, conveyed the real estate or any interest 2 35 in the real estate by deed, mortgage, or other instrument, and 3 1 the spouse failed to join in the conveyance, the spouse or the 3 2 heirs at law, personal representative, devisees, grantees, 3 3 or assignees of the spouse are barred from recovery unless 3 4 suit is brought for recovery within ten years from the date 3 5 of the conveyance.However, in the case where the right to 3 6 the distributive share has not accrued by the death of the 3 7 spouse executing the instrument, then the party not joining 3 8 is authorized to file in the recorder's office in the county 3 9 where the land is situated, a notice with affidavit setting 3 10 forth the affiant's claim, together with the facts upon which 3 11 the claim is based, and the residence of the claimants. If 3 12 the notice is not filed within ten years from the date of the 3 13 execution of the instrument the claim is barred forever. Any 3 14 action contemplated in this section may include land situated 3 15 in different counties by giving notice as provided in section 3 16 617.13. The effect of filing the notice with affidavit shall 3 17 extend for a further period of ten years the time within which 3 18 the action may be brought. Successive notices may be filed 3 19 extending this period.3 20 Sec. 9. Section 633.238, subsection 1, paragraph a, Code 3 21 2015, is amended by striking the paragraph. 3 22 Sec. 10. Section 633.238, subsection 1, paragraph d, Code 3 23 2015, is amended to read as follows: 3 24 d. One=third in value of the personal property held in trust 3 25 not necessary for the payment of debts and charges over which 3 26 the decedent was a grantor and retained at the time of death 3 27 the power to alter, amend, or revoke the trust, or over which 3 28 the decedent waived or rescinded any such power within one year 3 29 of the date of death, and to which the surviving spouse has not 3 30 made any express written relinquishment. 3 31 Sec. 11. Section 633.242, Code 2015, is amended to read as 3 32 follows: 3 33 633.242 Rights of election personal to surviving spouse. 3 34 The right of the surviving spouse to take an elective 3 35 share, and the right of the surviving spouse to receive a life 4 1 estate in the homestead, areis personal,. They areis not 4 2 transferable, and cannot be exercised for the spouse subsequent 4 3 to the spouse's death. If the surviving spouse dies prior to 4 4 filing an election, it shall be conclusively presumed that the 4 5 surviving spouse does not take such elective share. 4 6 Sec. 12. Section 633.243, Code 2015, is amended to read as 4 7 follows: 4 8 633.243 Filing elections. 4 9 The filing of the elective shareand the election to receive 4 10 a life estate in the homesteadshall be filed in the office of 4 11 the clerk in which the decedent's estate is being administered 4 12 and served on the trustee of the revocable trust. The court 4 13 where the election is filed shall have exclusive jurisdiction 4 14 over all matters regarding elections under this chapter. 4 15 Sec. 13. Section 633.244, Code 2015, is amended to read as 4 16 follows: 4 17 633.244 Incompetent spouse == election by court. 4 18 In case an affidavit is filed that the surviving spouse is 4 19 incapable of determining whether to take the elective share, 4 20 or to elect to receive a life estate in the homestead,and 4 21 does not have a conservator, the court shall fix a time and 4 22 place of hearing on the matter and cause a notice thereof to 4 23 be served upon the surviving spouse in such manner and for 4 24 such time as the court may direct. At the hearing, a guardian 4 25 ad litem shall be appointed to represent the spouse and the 4 26 court shall enter such orders as it deems appropriate under the 4 27 circumstances. The guardian ad litem shall be a practicing 4 28 attorney. 4 29 Sec. 14. Section 633.245, Code 2015, is amended to read as 4 30 follows: 4 31 633.245 Record of election. 4 32 The elections of the surviving spouse under section 633.236, 4 33 633.240or 633.244 shall be entered on the proper records of 4 34 the court. 4 35 Sec. 15. Section 633.246, subsection 1, Code 2015, is 5 1 amended to read as follows: 5 2 1. An election by or on behalf of a surviving spouse to 5 3 take the share provided in section 633.211, 633.212, 633.236, 5 4 633.238,633.240,or 633.244 shall be binding and shall not be 5 5 subject to change except for such causes as would justify an 5 6 equitable decree for the rescission of a deed. 5 7 Sec. 16. Section 633.647, subsection 6, Code 2015, is 5 8 amended to read as follows: 5 9 6. To make an election for the ward who is a surviving 5 10 spouse as provided in sections 633.236 and633.240633.238. 5 11 Sec. 17. REPEAL. Sections 561.12, 561.15, 633.239, 5 12 633.240, 633.241, 633.249, and 633.516, Code 2015, are 5 13 repealed. 5 14 EXPLANATION 5 15 The inclusion of this explanation does not constitute agreement with 5 16 the explanation's substance by the members of the general assembly. 5 17 This bill abolishes dower and curtesy, modifies the elective 5 18 share of a surviving spouse, and eliminates the surviving 5 19 spouse's statutory share of the homestead. 5 20 Dower and curtesy are common law rights relating to a 5 21 surviving spouse's property rights in the property of the 5 22 deceased spouse. The bill explicitly abolishes dower and 5 23 curtesy in this state. 5 24 Current law provides that even if a married person's spouse 5 25 is not a titleholder of the homestead, the married person 5 26 cannot convey or encumber the homestead unless the married 5 27 person's spouse executes an instrument conveying or encumbering 5 28 the same interest in the homestead. The bill provides that 5 29 if a married person's spouse is not a titleholder of the 5 30 homestead, the married person may convey or encumber the 5 31 homestead without the married person's nontitleholder spouse 5 32 executing an instrument conveying or encumbering the same 5 33 interest in the homestead. 5 34 Code section 561.15 provides that neither spouse can remove 5 35 the other nor the children from the homestead without the 6 1 consent of the other. The bill repeals Code section 561.15. 6 2 Current law allows a surviving spouse to elect, in lieu 6 3 of any property the spouse would otherwise receive under the 6 4 last will and testament of the deceased spouse, one=third in 6 5 value of all the legal or equitable estates in real property 6 6 possessed by the decedent at any time during the marriage which 6 7 have not been sold on execution or other judicial sale, as well 6 8 as personal property exempt from execution, one=third of all 6 9 personal property not necessary for the payment of debts and 6 10 charges, and one=third in value of the property held in trust 6 11 not necessary for the payment of debts and charges. The bill 6 12 provides that real estate possessed by the deceased spouse 6 13 during the marriage is not subject to the elective share. 6 14 The bill further provides that the one=third in value of the 6 15 property held in trust only applies to personal property, not 6 16 real property. 6 17 Current Code sections 561.12 and 633.240 provide that a 6 18 surviving spouse may, in lieu of electing a share of the real 6 19 property possessed by the decedent at any time of the marriage, 6 20 elect to receive a life estate in the homestead. The bill 6 21 repeals Code sections 561.12 and 633.240. 6 22 The bill makes conforming changes. LSB 2422YH (5) 86 jh/sc
