You are not legally obligated to record your newly married name on your old mortgage and related property deed unless you wish to change the tenancy status. However, if you choose to not include your new spouse in the tenancy, he may not have the right to the property in the event that he survives you. This can precipitate future estate management, tax, and asset protection problems, according to the Navy Federal Credit Union.
Joint tenancy grants both spouses the right to use the property and grants the right to survivorship in the event that your spouse survives you. This means that if you die before your spouse, he will inherit your interest in the property, as opposed to the property being bequeathed to other heirs, such as parents, relatives, and children from a previous marriage, for example. In this arrangement, either spouse can transfer their interest in the property without the permission of the other.
In a tenancy-in-common situation, in the event that your spouse survives you, your property interest would be given to your heirs, such as your parents, children, or grandchildren, for example. However, if your mortgage was paid during the marriage with community earnings, your surviving spouse has a community property interest in the property by virtue of the equity built with mutual funds. This is referred to as "Moore-Marsden" community interest.
In a tenancy-by-entirety arrangement, your spouse will inherit your property interest in the event of your death, and neither partner's interest can be transferred without the consent of the other spouse. This situation ensures that both parties will have a legal right to the property in question throughout the life of the mortgage and in the event that one spouse dies.
Protecting Your Assets
To avoid having a home that was yours before entering into marriage put at risk, you must get your spouse and lender to sign either a prenuptial or post-nuptial agreement that states that you are the individual owner of the property before, during and after marriage. The prenuptial contract is created before marriage and specifies who owns what. Some states honor post-nuptial agreements, which are like a prenuptial, but enacted during marriage. To safeguard ownership of a home that you owned prior to marriage, you must follow through with one of these contracts and maintain separate accounts. "You can't designate something as a separate account and then not have the actual ownership of the account reflect that, " according to Alicia Rinaldi, a family law attorney with Rinaldi & Sparks in Boston.
- NOLO: Debt and Marriage: When Do I Owe My Spouse's Debts?
- MSN Money: Can You Survive Your Spouses Debt?
- Navy Federal Credit Union: On This Day, We Join Together...Our Housing Payment?
- Federal Trade Commission: Credit and Divorce
- Bankrate.com: Community Property, Common Law, Assets and Debts
- Secretary of the Registry of the Commonwealth of Massachusetts: Registry of Deeds
- Lucerne County Pennsylvania: General Office Information/History
- Law Firm of Thurman W. Arnold III: FAQ's - What is the Legal Effect of a Refinance in My Divorce?
- FinancialWeb: What Happens to Your Credit Score After Marriage?
- DivorceNet.com: The Family Home in a California Divorce
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