Legal Question in Real Estate Law in New York

Re: Home ownership

You can have a duly executed Will leaving any and all of your property to your spouse, or another, in the event he survives you.

In the event you divorce, your spouse would be entitled to compensation or reimbursement for his direct and indirect contributions to the increased value and appreciation of any or all of your property, since your marriage.

If you transfer title of your pre-marriage owned house to your spouse, you would then loose the ability to say the house "is mine," for it would then be both of yours. You would no longer have the right to do anything with the property w/o your spouses' consent.

However, Transferring title to your spouse now, may be academic, since the Mortgage holding Lender, if any, may not permit you to change title, to include your husband, w/o recasting the mortgage loan.

Good luck,

Phroska L. McAlister,ESQ

Re: Home ownership

Either write a Will making the provisions you want or, in the alternative, create a trust and place the house in the trust. This would enable you to keep control, but make provision for your husband and child.

Re: Home ownership

The questions you ask raise the typical conflicting concerns where a spouse owned a house before marriage, wants to protect the other spouse, but also recognizes the potential for divorce. If you add your husband to the Deed, you will be deemed to have made him a gift of a part interest in the house which, in the event of divorce, would give him a claim against the equity in the house. Traditionally, assets owned premarital are not subject to these rights, on divorce, if they remain in the individual name of the original owner. So if you have concern about a possible divorce, do not add him to the Deed. You can cover this by your Will or a separate wrtitten agreement. This can cover such items as contribution to the mortgage, what rights each of you will have in the event of a divorce. How it impacts on the child/children's ability to remain in the house, etc. The Will can leave the house to him and/or include the child/children you have so he has a place to live if you were to pass away (although he would have this right anyway as a widower even if the house were solely in your name). It may also be that after several more years, if you feel confident the marriage will work, that you add him to the Deed later. Of course, alternatively, you could add him to the Deed now, but have some written agreement that in the event of divorce, the house reverts to you, with no claim, as if it were a protected pre-marital asset. I suggest an attorney assist you in both preparing the Deed and the agreement. With him on the Deed, you should get protection in the event of a catasthrophic illness.