I am going to give you all some advice this month that will stand out in the fact that it is unlike any other tip I have given you before. It’s not “real estate related” at least not in a traditional sense, but it may be the best advice I can give you for helping you perform your day-to-day duties in this busy season: GET. SOME. SLEEP.
We all have so many daily responsibilities. Some of you have to work 40, 50, 60 hours per week or more and then go home, make dinner, get the kids ready for bed and then get them ready for school the next day. Wash. Rinse. Repeat. And in the process of taking care of everyone else, you forget to take care of yourself.
Scientists say we need 6 – 8 hours of sleep every night. I try to shoot for 7, but 8 would be better. If you can manage to do that, not only will you feel better physically, but your ability to perform the multitude of tasks that you do on a daily basis will increase.
But don’t take my word for it. Click HERE for some more information about the benefits of getting sufficient sleep.
Have a legal Topic you want to know more about? Let us know and we can include it in an upcoming Newsletter!
The Barrister’s Title koozies are showing up on the fields for kid’s summer sports everywhere! It’s 5 o’clock somewhere, right?
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“You know me, but you can’t see me. I can help you without touching you. I have nineteen individual parts, but I act as a single being. I have been around for ten years but I am just getting started. What am I?”
Email your guesses to Summer. We will be revealing the answer in next month’s Quill so stay tuned!
There is a scene in one of my favorite movies –some of you may know it — the Princess Bride, in which two of the characters are in the process of getting married. The Officiant starts the ceremony with a single word…Marriage which he pronounces, “Mawwage!”
So, this month’s Article is about “Mawwage”. . . more specifically the rights that spouses hold in each other’s real property. We’ve all heard the saying, “One to buy. Two to sell.”, but what does that mean?…After all, we do not have true Community Property rights in North Carolina, like California, for instance. When we talk about “Marital Rights” in North Carolina, what are we talking about then? Generally speaking, we are talking about statutory rights that come from two provisions of the North Carolina General Statutes: NCGS 30-3.1 and NCGS 29-30. I won’t copy and paste those two statutes here, but I encourage you to read them. You can find them by clicking HERE.
NCGS 30-3.1 gives a surviving spouse the ability to dissent from the will and take an “Elective Share”. The amount of the Elective Share is less important than the fact that the right exists in favor of the surviving spouse. This statute is the reason why we say that a spouse cannot be “disinherited” in North Carolina. If a Wife leaves her husband nothing (or vice versa) in the will, the surviving spouse can dissent from the will and take the statutory share. The right to take an interest in the deceased spouse’s real property applies to any land owned “during coverture”. . .that is to say, any real property owned during the mawwage. . .ahem. . .I mean marriage. Note, the fact that the property was conveyed away to a third party during the marriage does not impact this right in favor of the Surviving Spouse. Those Spousal Rights still exist unless the Surviving Spouse released them as to the property. (More about this below). The second marital right comes from NCGS 29-30 which allows the Surviving Spouse to take a life estate in the real property of the Deceased Spouse. Again, the mechanics are less important than the fact that the right exists and has to be released by the Surviving Spouse during the Deceased Spouse’s lifetime.
As I intimated above, a release of the rights that stem from NCGS 30-3.1 and NCGS 29-30 must be in writing. Why? Because NCGS 30.3.6 and NCGS 52-10 say so. What is the purpose of those statutes you ask? The sentiment behind the law is that those are very important rights. There has to be a clear expression of intent to release those rights and they have to be in writing executed by the Spouse that is giving them up. Here is an example of what that looks like:
“This conveyance is made pursuant to the provisions of N.C.G.S. Section 52-10 and Section 29-30(a)(2) to release and quitclaim any marital rights or interests in the property which the Grantor spouse has or may have in the future, including but not limited to the right to claim against the property for equitable distribution, the right to inherit the property by intestate succession or by will, and the right to claim a widow’s or widower’s intestate share, elective share, or life estate against the property. It is the specific intent of this deed that the property shall be the sole and separate property of the Grantee, free and clear of all rights the Grantor spouse has or may have in the future under any North Carolina General Statute or law, this being a full and complete conveyance and release of all such rights by the Grantor spouse in and to this property.”
We have established that the waiver of rights has to be in a document, but what kind of document are we talking about? First, let me say that a release of the rights exists if the Surviving Spouse signs the instrument of conveyance. So, if the Spouse signs the Deed that transfers the property to a third party or the spouse signs the Deed of Trust in a financing scenario, that is sufficient to demonstrate the spouse’s intent and desire to release his or her rights from that property. This is why non-titled spouses sign Deeds and Deeds of Trust (in refinances). As between spouses, there are several options for extinguishing those marital rights. A Deed can be used. Oftentimes you will see Free Trader Agreements used to do so. Separation Agreements can be used to accomplish the same. On rare occasions, you may see either a Pre-Nuptial or Ante-Nuptial Agreement used to extinguish those marital rights. The key however, in each and every instance, is that the intent has to be clear and has to demonstrate a desire to extinguish the rights specifically. Reference to the statutes should be made. . .similar to the above which I have boldfaced.
So, if spouses have certain rights by law, then why does it only take one to Buy? The short answer is because NCGS 39-13 says so. (See below). We also have the Doctrine of Instantaneous Seisen in North Carolina which stands for the proposition that the lien of the purchase money lender is entitled to priority over everything. . .even statutory marital rights.
§ 39-13. Spouse need not join in purchase-money mortgage.
The purchaser of real estate who does not pay the whole of the purchase money at the time when he or she takes a deed for title may make a mortgage or deed of trust for securing the payment of such purchase money, or such part thereof as may remain unpaid, which shall be good and effectual against his or her spouse as well as the purchaser, without requiring the spouse to join in the execution of such mortgage or deed of trust. (1868-9, c. 204; Code, s. 1272; Rev., s. 958; 1907, c. 12; C.S., s. 1003; 1965, c. 852.)
For those interested in hearing more about Mawwage, indulge in THIS CLIP from one of the best movies of all time. Enjoy!
Keairra McGuire – Customer Care Team
1. What is something people don’t know about you?
I’m extremely goal orientated and HAVE TO be on time or early to events. (like 45 minutes minimum!)
2. What is your favorite movie?
3. Name a person, dead or alive, you’d like to have dinner with and why.
Justin Timberlake. I think he is pretty hilarious, plus he is a triple threat; singer, dancer, and actor, AND handsome. What more could you ask for? Haha.
4. If you were not working in title insurance what would you be doing?
Financial Advisor or something in sales.
5. Tell us about a brush with fame.
I did a nutcracker solo (sugar plum fairy) at a dance recital, also I was a Junior Top Cat for the Panthers.
Click HERE to meet the rest of the BT Family!