{"id":1075,"date":"2020-11-13T06:00:18","date_gmt":"2020-11-13T11:00:18","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=1075"},"modified":"2024-04-26T06:36:43","modified_gmt":"2024-04-26T10:36:43","slug":"youre-married-youre-not-on-the-house-title-what-are-your-rights","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/youre-married-youre-not-on-the-house-title-what-are-your-rights\/","title":{"rendered":"You\u2019re Married. You\u2019re Not on the House Title. What Are Your Rights?"},"content":{"rendered":"\n
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If your house is titled in your spouse\u2019s name, what are your\nrights in the home? The answer depends on several factors, starting with the\nlaw and customs of your home state. Let\u2019s take a look.<\/p>\n\n\n\n\n\n\n\n

In Community Property States<\/h2>\n\n\n\n

In a community property state \u2014 let\u2019s say California \u2014 your ownership rights are automatic for a house acquired during your marriage. Your home is equally shared between you, fifty-fifty \u2014 no matter how it\u2019s titled. You can change this only by giving up your rights in the home. And in California, that would mean you\u2019ve completed a quitclaim<\/a> and preliminary change of ownership form<\/a>, and then had these documents filed and recorded with the county.<\/p>\n\n\n\n

The policy driving community property is to keep spouses\nfrom losing their homes when marriages break down. The assumption here is that\nboth spouses will have put money, maintenance or care into the home during the\ncourse of the marriage, so it would be unfair to throw one spouse out with no\nequity. Other community property states, which have rules similar to those in\nCalifornia, are Arizona, Nevada, New Mexico, Texas, Louisiana, Idaho, Washington,\nand Wisconsin.<\/p>\n\n\n\n

What about a home owned by one of you before<\/em> you became\na couple? Or, what if property was given or bequeathed to just one of you? That\nconstitutes separate property.<\/em> The other spouse has neither rights nor\nduties to pay unpaid debts and liens on the property. <\/p>\n\n\n\n

Spouses can change separate property to community property by transferring the title into joint ownership. How does that impact the person who formerly owned the property alone? When property is titled solely in your name, you alone can sell it or refinance it. By bringing a co-owner onto the deed, you relinquish a part of that control. Both owners will have protected rights after both sign an agreement for a legally binding \u201ctransmutation\u201d of the home from separate to community property, following state-specific rules. <\/p>\n\n\n\n

Read more about transmuting separate property, and the tax advantages of community property<\/a>.<\/em><\/strong><\/pre>\n\n\n\n
What About Other States?<\/h2>\n\n\n\n
What about states where community property isn\u2019t the norm? In\nsome of these other states, spouses may use special trusts to affirmatively designate\ncommunity property. South Dakotans may use spousal trusts<\/a> for this, as may Alaskans<\/a>. The Tennessee community property trust<\/a> allows\ncommunity property designation for a home, along with tax advantages. There may\nbe other options too. A lawyer in your state experienced in wills, estates, and\nreal estate matters can advise you.<\/p>\n\n\n\n
But generally, if you live in a common-law state \u2014 that is,\nif you are not in a community property state \u2014 you need to get your name on the\ntitle to have ownership rights. Under the common-law system of real\nproperty, a house acquired by one life partner belongs solely to that\nindividual, unless titled jointly.<\/p>\n\n\n\n
Why isn\u2019t your home titled jointly<\/a>? Maybe your spouse or life partner bought the house before you became a couple and wanted to retain it as separate property, or to bequeath it to a child from a previous marriage. Maybe a tax or estate planning adviser suggested that your partner take title as a sole owner. Or maybe your credit score<\/a> was an issue at the time of purchase. <\/p>\n\n\n\n
For a spouse to be added onto the mortgage after earning an\nimproved credit score, the couple must refinance their home. If the lender\nextends the loan to both of you, based on your combined financial profiles, both\nof your names will almost certainly have to be on the title. In other words, lenders\nask two co-borrowers to be co-owners, not just co-signers. The reason is\nsimple. Lenders want both people on the title so that both are legally obliged\nto send in the monthly payments. If those payments stop coming, lenders don\u2019t\nwant to go through the trouble of pressing a non-owning co-signer to step up. <\/p>\n\n\n\n
You\u2019ll Get the Home in Your Partner\u2019s Will. Is That Enough?<\/h2>\n\n\n\n
If you\u2019re named in the will, and your partner does\npredecease you, it could be all you need. But probate carries a risk in some\nfamilies. You could be pitted against your spouse\u2019s or life partner\u2019s family\nover rights to keep the home. If your partner must maintain sole ownership\nwhile living, find out if you can be a named beneficiary on a transfer\non death deed<\/a><\/em>. If your state offer this, it\u2019s a good alternative\nto probate, yet it still offers a stepped-up cost basis, so a beneficiary who\ndecides to sell can avoid heavy capital gains taxes on a valuable house. <\/p>\n\n\n\n
With either option, though, as long as you and your life\npartner are living, you will have no legal say. Your partner could sell, take a\nloan out on the property, or refinance without your input or involvement.<\/p>\n\n\n\n
Moreover, if you live in the home but aren\u2019t involved in the\nmortgage, it\u2019s possible that the home you live in could go into foreclosure. These\nare key reasons for having the title transferred into both of your names as a\njoint tenants with survivorship rights, or, where permitted, as a tenants by\nthe entirety (which protects each spouse from being liable for the debts of the\nother). Then you will both have a vested interest. Should your spouse pass away\nfirst, as the survivor you\u2019ll receive the house. You\u2019ll do this by recording an affidavit\nof survivorship along with the late spouse\u2019s death certificate.  <\/p>\n\n\n\n
Pro tip: <\/em><\/strong>Does your state allow sole homeowners\nto switch their titles to co-ownerships upon marriage? Some do. If your spouse creates\nco-ownership and rights of survivorship for you, be sure what\u2019s transferred is\na 100% interest into both names, not just a half-interest.<\/p>\n\n\n\n
What Is the Process for Changing a House Title?<\/h2>\n\n\n\n
Often, the easiest way to change a title from a sole\nownership into a joint ownership is quitclaiming<\/a> (for\nCalifornians, using an interspousal\ngrant deed<\/a>), and naming both partners on the new deed as co-owners.<\/p>\n\n\n\n
Some couples go to the company that handled the current\nowner\u2019s settlement. Its agents have experience in working with couples who\nchange their titles from sole ownership to co-ownership. It is a\nstraightforward matter to have both people sign the deed with the notary, and pay\nthe filing fee. <\/p>\n\n\n\n
But it is best to meet with local wills and estates or real\nestate lawyer to understand the options in your state, and the risks and\nbenefits of each, before adding a\nspouse\u2019s name to the title<\/a>. <\/p>\n\n\n\n
A few reminders for title changes: <\/p>\n\n\n\n