How will a home purchased in my husband's name pass at divorce or death?

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Question:

My husband purchased our home two months before we were married and it is in his name only. What happens if we divorce or he dies? Also, we have a three-month-old child, and I'm concerned about what his sole ownership will mean for her as well.

Answer:

First, what will happen if you divorce? In all states except those that follow the community property ownership system -- Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin -- judges have the power to fairly distribute the property of both members of a married couple at divorce. Depending on how much total property there is, it would not be unusual for a house to be awarded to the person who will be the primary caretaker of a child even if the other person owns it. If you live in a community property state, there's a chance the house could be considered community property (that is, half yours) if your own earnings are put into the house -- for example, to make mortgage payments or to cover the costs of repairs or improvements. In other words, there's no way to answer this question with certainty -- it depends on a few factors.

At death, property goes to the person designated to receive it. If there's no will, a spouse has the right to claim at least one-third to one-half of the deceased spouse's total estate unless a written contract states otherwise. A few states have laws specifically forbidding a homeowner from leaving the family home to anyone other than a spouse and children.

Still, there's no reason to leave this matter to the default rules of your state's law. It would be simple for your husband to put the house in both your names. All you need is to prepare a deed (not difficult, and a tax-free transaction) transferring ownership from him alone to both of you.

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