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LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Im a realtor in Kansas. My buyer client recently (last week)

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I'm a realtor in Kansas. My buyer client recently (last week) inherited some cash from her deceased father. (his property was sold and she received some proceeds). She deposited the cash in her own private checking account. She's using that cash to buy a home for herself. She is in the process of getting a divorce and has left her husband (about 2 months ago). We are within weeks of closing and her soon-to-be ex has filed something to claim half of her inheritance and/or half the value of the house she's trying to buy. Can he be successful with that claim??? Should we cancel the contract? She stated on the RE contract she is a cash buyer and we showed proof of funds, but at this moment, if her cash is being subjected to distribution, she suddenly does not have access to it, possibly. What do you say?
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I am sorry to hear of this. Did she have any written agreements with her soon to be ex such as nuptial agreements? Also, was the inheritance solely to her (and did not name the husband)?

Customer:

She did not have a pre-nup. Her father's will did NOT list him or any of his other son-in-laws, for that matter. He left his money to his 3 daughters - period.

LegalGems :

Ok, that is good to hear.

LegalGems :

Please see Kansas Revised statute:

LegalGems :

Sorry I am trying to link you - a moment or so.


23-201. Married persons; separate property; marital property.(a) The property, real and personal, which any person in this state mayown at the time of the person's marriage, and the rents, issues, profitsor proceeds thereof, and any real, personal or mixed property whichshall come to a person by descent, devise or bequest, and the rents, issues,profits or proceeds thereof, or by gift fromany person except the person's spouse, shall remain the person's sole andseparate property, notwithstanding the marriage, and not be subject tothe disposal of the person's spouse or liable for the spouse's debts. - See more at: http://statutes.laws.com/kansas/chapter23/article2/statutes_12728#sthash.794EdDtt.dpuf

23-201. Married persons; separate property; marital property.(a) The property, real and personal, which any person in this state mayown at the time of the person's marriage, and the rents, issues, profitsor proceeds thereof, and any real, personal or mixed property whichshall come to a person by descent, devise or bequest, and the rents, issues,profits or proceeds thereof, or by gift fromany person except the person's spouse, shall remain the person's sole andseparate property, notwithstanding the marriage, and not be subject tothe disposal of the person's spouse or liable for the spouse's debts. - See more at: http://statutes.laws.com/kansas/chapter23/article2/statutes_12728#sthash.794EdDtt.dpuf

23-201. Married persons; separate property; marital property.(a) The property, real and personal, which any person in this state mayown at the time of the person's marriage, and the rents, issues, profitsor proceeds thereof, and any real, personal or mixed property whichshall come to a person by descent, devise or bequest, and the rents, issues,profits or proceeds thereof, or by gift fromany person except the person's spouse, shall remain the person's sole andseparate property, notwithstanding the marriage, and not be subject tothe disposal of the person's spouse or liable for the spouse's debts. - See more at: http://statutes.laws.com/kansas/chapter23/article2/statutes_12728#sthash.794EdDtt.dpuf

23-201. Married persons; separate property; marital property.(a) The property, real and personal, which any person in this state mayown at the time of the person's marriage, and the rents, issues, profitsor proceeds thereof, and any real, personal or mixed property whichshall come to a person by descent, devise or bequest, and the rents, issues,profits or proceeds thereof, or by gift fromany person except the person's spouse, shall remain the person's sole andseparate property, notwithstanding the marriage, and not be subject tothe disposal of the person's spouse or liable for the spouse's debts. - See more at: http://statutes.laws.com/kansas/chapter23/article2/statutes_12728#sthash.794EdDtt.dpuf
LegalGems :

It's 23-201: (a) The property, real and personal, which any person in this state may own at the time of the person's marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to a person by descent, devise or bequest, and the rents, issues, profits or proceeds thereof, or by gift from any person except the person's spouse, shall remain the person's sole and separate property, notwithstanding the marriage, and not be subject to the disposal of the person's spouse or liable for the spouse's debts.

LegalGems :

"descent, devise or bequest" refers to inheritance.

LegalGems :

If she used the inheritance to improve the living standard during marriage (ie to the benefit of both spouses) then, under doctrines of "equitable fairness" it can be considered in the division. But since she just received the money that would not seem applicable.

LegalGems :

During the divorce, she will be filling out a financial affidavit, where one lists assets/debts. The asset should be listed as non-marital property.

LegalGems :

Worse case scenario, she will need to file a Motion to Exclude Assets form (obtainable from the court clerk where the divorce is pending), and then the court will have a hearing to determine if it's marital property.

Customer:

By the time the divorce is final, she will have turned her inherited cash into a house. This house purchase is being done while she's going through divorce. I guess the question now becomes, does the soon to be ex have a "claim" on her newly acquired house? ie: could he require her to sell it and give him half the proceeds? The house is being purchased in her name only, obviously. So does it end up being a judge's decision?? If so, that could take weeks/months and we need to know if we should cancel this contract now or take a risk.

LegalGems :

Since the judge is allowed to make an "equitable" decision, it would be risky to try and guess, as the equitable factor gives the judge an amazing amount of discretion. That being said, - and I'm not sure how flexible the seller is- but you may want to see if you can get an extension on the contract, and file the motion to exclude assets - based on the time issue, you can request an order shortening time (the court will prioritize the case and schedule a hearing sooner than is customary). Then you would have a definitive ruling which would take all the risk out of it. Depending on the local court and what kind of backlog they have, you could get a hearing this week.

Customer:

Thank you.

LegalGems :

The statute does acknowledge that "the rents, issues, profits or proceeds thereof" (from the inherited property) remain the separate property of the inherited spouse. But I would be concerned because of the equitable factor. You are welcome.

LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3688
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Expert:  LegalGems replied 1 year ago.
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