Section 442.035

Title XXIX OWNERSHIP AND CONVEYANCE OF PROPERTY

Chapter 442

Effective - 01 Jul 1997, see footnote   

  442.035.  Conveyance of estates by the entireties by minors or disabled persons, conservator's powers and duties. — 1.  If any property, real or personal, including homestead property, is held by a husband and wife as tenants by the entirety, whether such entireties estate was created before or is created after July 1, 1997, and if one spouse is an adult and competent and the other spouse is under the age of eighteen or disabled as defined in chapter 475, or if both spouses are under the age of eighteen or disabled, or if one spouse is under the age of eighteen and the other is disabled, the conservator of any such spouse, subject to the provisions of subsections 2 and 3 shall have full power to act for such conservator's protectee and to do all things with respect to the property that the protectee could do if such protectee were an adult and competent; and without limiting the generality of the foregoing, the conservator acting with the other spouse or the other conservator may sell, convey, exchange, mortgage or pledge to secure loans of cash or purchase money, lease, invest, reinvest, partition the property or its proceeds in equal shares, convert the property or its proceeds into a tenancy in common in equal shares, or otherwise dispose of the property.

  2.  The power confirmed in a conservator by this section shall at all times be subject to the approval, control, and supervision of the probate division of the circuit court having venue of the conservatorship.  Either the conservator or the adult and competent spouse may petition or apply to the appropriate court for approval of an agreed proposed disposition of property held by entireties.  In the event the court finds that the proposed disposition is fair and equitable to the protectee taking into consideration all of the circumstances of the case including the proper interests of the other spouse, the court shall make appropriate authorization of disposition and such orders as are necessary and proper in the case.  Insofar as is practicable, procedure in the probate division of the circuit court shall be in accord with the procedure provided in chapter 475 for a similar type of disposition of property.  The court in its discretion may tax the costs against both parties in equal or unequal shares, or solely against one party, or solely against the other party.

  3.  If one of the spouses who hold by entireties is the conservator of the other spouse, such conservator shall not represent such conservator's protectee in any negotiations for agreement respecting disposition of the entireties property or in any proceedings for approval of an agreed proposed disposition of such property, but in all such matters the protectee shall be represented by a guardian ad litem.  In such cases, on petition or application by the adult and competent spouse, acting individually or as conservator, for disposition of the entireties property, the court shall appoint a guardian ad litem to represent the protectee in the matter of a proposed disposition of the property, and the guardian ad litem shall represent the protectee in any negotiations for agreement with the adult and competent spouse and in any proceedings for approval of the agreed proposed disposition of the property.  In the event the agreed proposed disposition is approved by the court, the guardian ad litem shall be discharged and the conservator shall resume such conservator's full conservatorship and shall do all things necessary to carry into effect the disposition of the property as approved pursuant to authorization and orders by the court.  In the event no agreement is reached after a reasonable time with reference to disposition of the property, the guardian ad litem shall be discharged.

  4.  This section has no application to the conveyance, encumbrance or sale of property by a person under the age of eighteen who holds such property as a tenant by the entirety and who is authorized by law to make such conveyance, encumbrance or sale in person.

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(L. 1959 H.B. 225 § 1, A.L. 1974 2d Ex. Sess. S.B. 2, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45, A.L. 1996 S.B. 869)

Effective 7-01-97