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House File 520 - IntroducedA Bill ForAn Act 1relating to real property by abolishing dower and
2curtesy, modifying the elective share of a surviving spouse,
3and eliminating the surviving spouse’s statutory share of
4the homestead.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 232.82, subsection 1, Code 2015, is
2amended to read as follows:
31. Notwithstanding section 561.15, if If it is alleged by
4a person authorized to file a petition under section 232.87,
5subsection 2, or by the court on its own motion, that a parent,
6guardian, custodian, or an adult member of the household in
7which a child resides has committed a sexual offense with or
8against the child, pursuant to chapter 709 or section 726.2,
9or a physical abuse as defined by section 232.2, subsection
1042, the juvenile court may enter an ex parte order requiring
11the alleged sexual offender or physical abuser to vacate the
12child’s residence upon a showing that probable cause exists to
13believe that the sexual offense or physical abuse has occurred
14and that substantial evidence exists to believe that the
15presence of the alleged sexual offender or physical abuser in
16the child’s residence presents a danger to the child’s life or
17physical, emotional, or mental health.
18 Sec. 2. NEW SECTION. 558.73 Dower and curtesy abolished.
19Dower and curtesy are abolished in this state.
20 Sec. 3. Section 561.11, Code 2015, is amended to read as
21follows:
22561.11 Occupancy by surviving spouse.
23Upon the death of either spouse, the survivor may continue to
24possess and occupy the whole homestead until it is otherwise
25disposed of according to law, but the setting off of the
26distributive share of the survivor in the real estate of the
27deceased shall be such a disposal of the homestead as is herein
28contemplated.
29 Sec. 4. Section 561.13, Code 2015, is amended by striking
30the section and inserting in lieu thereof the following:
31561.13 Conveyance or encumbrance.
32A conveyance or encumbrance of, or contract to convey or
33encumber the homestead, if the owner is married, is valid, even
34if the spouse of the owner who is not a titleholder of the
35homestead does not execute the same or a like instrument, or
-1-1a power of attorney for the execution of the same or a like
2instrument.
3 Sec. 5. Section 597.5, Code 2015, is amended to read as
4follows:
5597.5 Attorney in fact.
6A husband or wife may constitute the other spouse as the
7husband’s or wife’s attorney in fact, to control and dispose of
8the husband’s or wife’s property, including the relinquishment
9of homestead rights and surviving spouse’s statutory share in
10the homestead, as provided in section 561.13, for their mutual
11benefit, and may revoke the appointment, the same as other
12persons.
13 Sec. 6. Section 598.33, Code 2015, is amended to read as
14follows:
15598.33 Order to vacate.
16Notwithstanding section 561.15, the The court may order
17either party to vacate the homestead pending entry of a decree
18of dissolution upon a showing that the other party or the
19children are in imminent danger of physical harm if the order
20is not issued.
21 Sec. 7. Section 614.14, subsection 1, Code 2015, is amended
22to read as follows:
231. If an interest in real estate is held of record by a
24trustee, a bona fide purchaser acquires all rights in the real
25estate which the trustee and the beneficiary of the trust had
26and any rights of persons claiming by, through, or under them,
27free of any adverse claim including but not limited to claims
28arising under section 561.13 or claims relating to an interest
29in real estate arising under section 633.238.
30 Sec. 8. Section 614.15, subsection 2, Code 2015, is amended
31to read as follows:
322. In all cases where the holder of the legal or equitable
33title or estate to real estate situated within this state,
34after July 1, 1981, conveyed the real estate or any interest
35in the real estate by deed, mortgage, or other instrument, and
-2-1the spouse failed to join in the conveyance, the spouse or the
2heirs at law, personal representative, devisees, grantees,
3or assignees of the spouse are barred from recovery unless
4suit is brought for recovery within ten years from the date
5of the conveyance. However, in the case where the right to
6the distributive share has not accrued by the death of the
7spouse executing the instrument, then the party not joining
8is authorized to file in the recorder’s office in the county
9where the land is situated, a notice with affidavit setting
10forth the affiant’s claim, together with the facts upon which
11the claim is based, and the residence of the claimants. If
12the notice is not filed within ten years from the date of the
13execution of the instrument the claim is barred forever. Any
14action contemplated in this section may include land situated
15in different counties by giving notice as provided in section
16617.13. The effect of filing the notice with affidavit shall
17extend for a further period of ten years the time within which
18the action may be brought. Successive notices may be filed
19extending this period.
20 Sec. 9. Section 633.238, subsection 1, paragraph a, Code
212015, is amended by striking the paragraph.
22 Sec. 10. Section 633.238, subsection 1, paragraph d, Code
232015, is amended to read as follows:
24d. One-third in value of the personal property held in trust
25not necessary for the payment of debts and charges over which
26the decedent was a grantor and retained at the time of death
27the power to alter, amend, or revoke the trust, or over which
28the decedent waived or rescinded any such power within one year
29of the date of death, and to which the surviving spouse has not
30made any express written relinquishment.
31 Sec. 11. Section 633.242, Code 2015, is amended to read as
32follows:
33633.242 Rights of election personal to surviving spouse.
34The right of the surviving spouse to take an elective
35share, and the right of the surviving spouse to receive a life
-3-1estate in the homestead, are is personal,. They are is not
2transferable, and cannot be exercised for the spouse subsequent
3to the spouse’s death. If the surviving spouse dies prior to
4filing an election, it shall be conclusively presumed that the
5surviving spouse does not take such elective share.
6 Sec. 12. Section 633.243, Code 2015, is amended to read as
7follows:
8633.243 Filing elections.
9The filing of the elective share and the election to receive
10a life estate in the homestead shall be filed in the office of
11the clerk in which the decedent’s estate is being administered
12and served on the trustee of the revocable trust. The court
13where the election is filed shall have exclusive jurisdiction
14over all matters regarding elections under this chapter.
15 Sec. 13. Section 633.244, Code 2015, is amended to read as
16follows:
17633.244 Incompetent spouse —— election by court.
18In case an affidavit is filed that the surviving spouse is
19incapable of determining whether to take the elective share,
20or to elect to receive a life estate in the homestead, and
21does not have a conservator, the court shall fix a time and
22place of hearing on the matter and cause a notice thereof to
23be served upon the surviving spouse in such manner and for
24such time as the court may direct. At the hearing, a guardian
25ad litem shall be appointed to represent the spouse and the
26court shall enter such orders as it deems appropriate under the
27circumstances. The guardian ad litem shall be a practicing
28attorney.
29 Sec. 14. Section 633.245, Code 2015, is amended to read as
30follows:
31633.245 Record of election.
32The elections of the surviving spouse under section 633.236,
33633.240 or 633.244 shall be entered on the proper records of
34the court.
35 Sec. 15. Section 633.246, subsection 1, Code 2015, is
-4-1amended to read as follows:
21. An election by or on behalf of a surviving spouse to
3take the share provided in section 633.211, 633.212, 633.236,
4633.238, 633.240, or 633.244 shall be binding and shall not be
5subject to change except for such causes as would justify an
6equitable decree for the rescission of a deed.
7 Sec. 16. Section 633.647, subsection 6, Code 2015, is
8amended to read as follows:
96. To make an election for the ward who is a surviving
10spouse as provided in sections 633.236 and 633.240 633.238.
11 Sec. 17. REPEAL. Sections 561.12, 561.15, 633.239,
12633.240, 633.241, 633.249, and 633.516, Code 2015, are
13repealed.
14EXPLANATION
15The inclusion of this explanation does not constitute agreement with
16the explanation’s substance by the members of the general assembly.
17This bill abolishes dower and curtesy, modifies the elective
18share of a surviving spouse, and eliminates the surviving
19spouse’s statutory share of the homestead.
20Dower and curtesy are common law rights relating to a
21surviving spouse’s property rights in the property of the
22deceased spouse. The bill explicitly abolishes dower and
23curtesy in this state.
24Current law provides that even if a married person’s spouse
25is not a titleholder of the homestead, the married person
26cannot convey or encumber the homestead unless the married
27person’s spouse executes an instrument conveying or encumbering
28the same interest in the homestead. The bill provides that
29if a married person’s spouse is not a titleholder of the
30homestead, the married person may convey or encumber the
31homestead without the married person’s nontitleholder spouse
32executing an instrument conveying or encumbering the same
33interest in the homestead.
34Code section 561.15 provides that neither spouse can remove
35the other nor the children from the homestead without the
-5-1consent of the other. The bill repeals Code section 561.15.
2Current law allows a surviving spouse to elect, in lieu
3of any property the spouse would otherwise receive under the
4last will and testament of the deceased spouse, one-third in
5value of all the legal or equitable estates in real property
6possessed by the decedent at any time during the marriage which
7have not been sold on execution or other judicial sale, as well
8as personal property exempt from execution, one-third of all
9personal property not necessary for the payment of debts and
10charges, and one-third in value of the property held in trust
11not necessary for the payment of debts and charges. The bill
12provides that real estate possessed by the deceased spouse
13during the marriage is not subject to the elective share.
14The bill further provides that the one-third in value of the
15property held in trust only applies to personal property, not
16real property.
17Current Code sections 561.12 and 633.240 provide that a
18surviving spouse may, in lieu of electing a share of the real
19property possessed by the decedent at any time of the marriage,
20elect to receive a life estate in the homestead. The bill
21repeals Code sections 561.12 and 633.240.
22The bill makes conforming changes.
-6-
2curtesy, modifying the elective share of a surviving spouse,
3and eliminating the surviving spouse’s statutory share of
4the homestead.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 232.82, subsection 1, Code 2015, is
2amended to read as follows:
31. Notwithstanding section 561.15, if If it is alleged by
4a person authorized to file a petition under section 232.87,
5subsection 2, or by the court on its own motion, that a parent,
6guardian, custodian, or an adult member of the household in
7which a child resides has committed a sexual offense with or
8against the child, pursuant to chapter 709 or section 726.2,
9or a physical abuse as defined by section 232.2, subsection
1042, the juvenile court may enter an ex parte order requiring
11the alleged sexual offender or physical abuser to vacate the
12child’s residence upon a showing that probable cause exists to
13believe that the sexual offense or physical abuse has occurred
14and that substantial evidence exists to believe that the
15presence of the alleged sexual offender or physical abuser in
16the child’s residence presents a danger to the child’s life or
17physical, emotional, or mental health.
18 Sec. 2. NEW SECTION. 558.73 Dower and curtesy abolished.
19Dower and curtesy are abolished in this state.
20 Sec. 3. Section 561.11, Code 2015, is amended to read as
21follows:
22561.11 Occupancy by surviving spouse.
23Upon the death of either spouse, the survivor may continue to
24possess and occupy the whole homestead until it is otherwise
25disposed of according to law, but the setting off of the
26distributive share of the survivor in the real estate of the
27deceased shall be such a disposal of the homestead as is herein
28contemplated.
29 Sec. 4. Section 561.13, Code 2015, is amended by striking
30the section and inserting in lieu thereof the following:
31561.13 Conveyance or encumbrance.
32A conveyance or encumbrance of, or contract to convey or
33encumber the homestead, if the owner is married, is valid, even
34if the spouse of the owner who is not a titleholder of the
35homestead does not execute the same or a like instrument, or
-1-1a power of attorney for the execution of the same or a like
2instrument.
3 Sec. 5. Section 597.5, Code 2015, is amended to read as
4follows:
5597.5 Attorney in fact.
6A husband or wife may constitute the other spouse as the
7husband’s or wife’s attorney in fact, to control and dispose of
8the husband’s or wife’s property, including the relinquishment
9of homestead rights and surviving spouse’s statutory share in
10the homestead, as provided in section 561.13, for their mutual
11benefit, and may revoke the appointment, the same as other
12persons.
13 Sec. 6. Section 598.33, Code 2015, is amended to read as
14follows:
15598.33 Order to vacate.
16Notwithstanding section 561.15, the The court may order
17either party to vacate the homestead pending entry of a decree
18of dissolution upon a showing that the other party or the
19children are in imminent danger of physical harm if the order
20is not issued.
21 Sec. 7. Section 614.14, subsection 1, Code 2015, is amended
22to read as follows:
231. If an interest in real estate is held of record by a
24trustee, a bona fide purchaser acquires all rights in the real
25estate which the trustee and the beneficiary of the trust had
26and any rights of persons claiming by, through, or under them,
27free of any adverse claim including but not limited to claims
28arising under section 561.13 or claims relating to an interest
29in real estate arising under section 633.238.
30 Sec. 8. Section 614.15, subsection 2, Code 2015, is amended
31to read as follows:
322. In all cases where the holder of the legal or equitable
33title or estate to real estate situated within this state,
34after July 1, 1981, conveyed the real estate or any interest
35in the real estate by deed, mortgage, or other instrument, and
-2-1the spouse failed to join in the conveyance, the spouse or the
2heirs at law, personal representative, devisees, grantees,
3or assignees of the spouse are barred from recovery unless
4suit is brought for recovery within ten years from the date
5of the conveyance. However, in the case where the right to
6the distributive share has not accrued by the death of the
7spouse executing the instrument, then the party not joining
8is authorized to file in the recorder’s office in the county
9where the land is situated, a notice with affidavit setting
10forth the affiant’s claim, together with the facts upon which
11the claim is based, and the residence of the claimants. If
12the notice is not filed within ten years from the date of the
13execution of the instrument the claim is barred forever. Any
14action contemplated in this section may include land situated
15in different counties by giving notice as provided in section
16617.13. The effect of filing the notice with affidavit shall
17extend for a further period of ten years the time within which
18the action may be brought. Successive notices may be filed
19extending this period.
20 Sec. 9. Section 633.238, subsection 1, paragraph a, Code
212015, is amended by striking the paragraph.
22 Sec. 10. Section 633.238, subsection 1, paragraph d, Code
232015, is amended to read as follows:
24d. One-third in value of the personal property held in trust
25not necessary for the payment of debts and charges over which
26the decedent was a grantor and retained at the time of death
27the power to alter, amend, or revoke the trust, or over which
28the decedent waived or rescinded any such power within one year
29of the date of death, and to which the surviving spouse has not
30made any express written relinquishment.
31 Sec. 11. Section 633.242, Code 2015, is amended to read as
32follows:
33633.242 Rights of election personal to surviving spouse.
34The right of the surviving spouse to take an elective
35share, and the right of the surviving spouse to receive a life
-3-1estate in the homestead, are is personal,. They are is not
2transferable, and cannot be exercised for the spouse subsequent
3to the spouse’s death. If the surviving spouse dies prior to
4filing an election, it shall be conclusively presumed that the
5surviving spouse does not take such elective share.
6 Sec. 12. Section 633.243, Code 2015, is amended to read as
7follows:
8633.243 Filing elections.
9The filing of the elective share and the election to receive
10a life estate in the homestead shall be filed in the office of
11the clerk in which the decedent’s estate is being administered
12and served on the trustee of the revocable trust. The court
13where the election is filed shall have exclusive jurisdiction
14over all matters regarding elections under this chapter.
15 Sec. 13. Section 633.244, Code 2015, is amended to read as
16follows:
17633.244 Incompetent spouse —— election by court.
18In case an affidavit is filed that the surviving spouse is
19incapable of determining whether to take the elective share,
20or to elect to receive a life estate in the homestead, and
21does not have a conservator, the court shall fix a time and
22place of hearing on the matter and cause a notice thereof to
23be served upon the surviving spouse in such manner and for
24such time as the court may direct. At the hearing, a guardian
25ad litem shall be appointed to represent the spouse and the
26court shall enter such orders as it deems appropriate under the
27circumstances. The guardian ad litem shall be a practicing
28attorney.
29 Sec. 14. Section 633.245, Code 2015, is amended to read as
30follows:
31633.245 Record of election.
32The elections of the surviving spouse under section 633.236,
33633.240 or 633.244 shall be entered on the proper records of
34the court.
35 Sec. 15. Section 633.246, subsection 1, Code 2015, is
-4-1amended to read as follows:
21. An election by or on behalf of a surviving spouse to
3take the share provided in section 633.211, 633.212, 633.236,
4633.238, 633.240, or 633.244 shall be binding and shall not be
5subject to change except for such causes as would justify an
6equitable decree for the rescission of a deed.
7 Sec. 16. Section 633.647, subsection 6, Code 2015, is
8amended to read as follows:
96. To make an election for the ward who is a surviving
10spouse as provided in sections 633.236 and 633.240 633.238.
11 Sec. 17. REPEAL. Sections 561.12, 561.15, 633.239,
12633.240, 633.241, 633.249, and 633.516, Code 2015, are
13repealed.
14EXPLANATION
15The inclusion of this explanation does not constitute agreement with
16the explanation’s substance by the members of the general assembly.
17This bill abolishes dower and curtesy, modifies the elective
18share of a surviving spouse, and eliminates the surviving
19spouse’s statutory share of the homestead.
20Dower and curtesy are common law rights relating to a
21surviving spouse’s property rights in the property of the
22deceased spouse. The bill explicitly abolishes dower and
23curtesy in this state.
24Current law provides that even if a married person’s spouse
25is not a titleholder of the homestead, the married person
26cannot convey or encumber the homestead unless the married
27person’s spouse executes an instrument conveying or encumbering
28the same interest in the homestead. The bill provides that
29if a married person’s spouse is not a titleholder of the
30homestead, the married person may convey or encumber the
31homestead without the married person’s nontitleholder spouse
32executing an instrument conveying or encumbering the same
33interest in the homestead.
34Code section 561.15 provides that neither spouse can remove
35the other nor the children from the homestead without the
-5-1consent of the other. The bill repeals Code section 561.15.
2Current law allows a surviving spouse to elect, in lieu
3of any property the spouse would otherwise receive under the
4last will and testament of the deceased spouse, one-third in
5value of all the legal or equitable estates in real property
6possessed by the decedent at any time during the marriage which
7have not been sold on execution or other judicial sale, as well
8as personal property exempt from execution, one-third of all
9personal property not necessary for the payment of debts and
10charges, and one-third in value of the property held in trust
11not necessary for the payment of debts and charges. The bill
12provides that real estate possessed by the deceased spouse
13during the marriage is not subject to the elective share.
14The bill further provides that the one-third in value of the
15property held in trust only applies to personal property, not
16real property.
17Current Code sections 561.12 and 633.240 provide that a
18surviving spouse may, in lieu of electing a share of the real
19property possessed by the decedent at any time of the marriage,
20elect to receive a life estate in the homestead. The bill
21repeals Code sections 561.12 and 633.240.
22The bill makes conforming changes.
-6-