Conyers, GA asked in Probate for District of Columbia

Q: Can a executor of an estate awarded by the courts sell Realestate property that is in litigation

Lawsuit was brought by a boyfriend claiming common law . The case is in litigation but there is not a court order to stop anything

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in District of Columbia

A: Common law spousal rights may give rise to a claim to a share of the estate, but it does not change title to real estate, so the Estate can sell the real estate and collect the sales proceeds into an estate account for eventual distribution to the heirs/legatees. in order to claim a share of the estate assets as a spouse, the boyfriend will have to file a claim against the estate as required by the court rules, and the PR will need to reject or accept the claim. If rejected, the boyfriend will need to prove the existence of the common law marriage per the law. The only scenario that might create an issue with sale of the real property is if in the lawsuit the boyfriend filed there is a request to place the real property under a "constructive trust" as representing "marital property." In that scenario, the title to the property and legal interest of the alleged common law spouse is in issue in a pending legal case, which by operation of law is deemed a legal notice against all future purchasers or transferees of the property that a court may at some point grant an ownership interest in the property to the boyfriend. This is what is called a "lis pendens" and may cause potential buyers to decline to purchase the property since they may have future title issues with the boyfriend. However, it is also possible to remove the property from any constructive trust imposed by the court, and limit the boyfriend's potential claim to whatever spousal share of the estate he is entitled to, and therefore convert his interest merely to that on a monetary interest in the proceeds from sale and not 'cloud the title" of the real property after its sale.

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