Dear Quentin,
I live in New Jersey. My husband and I have been married for 15 years. We have no children from our marriage. However, we both have adult children.
I sold my home to move into his fixer-upper. My name is not on the deed, however; we have paid homeowners’ loans and insurances jointly. Everything is paid in full. I remodeled the home over the past 15 years, and I am currently paying for another remodeling project of the kitchen. He is doing the work with all new appliances.
“‘‘I remodeled the home over the past 15 years, and I am currently paying for another remodeling project of the kitchen.’”
My fear is that his daughter may have rights to ownership of the marital home if he passes before me and that he could change his will. She has contributed nothing. He had a will when we first married, and to my knowledge, he hasn’t changed it. We agreed that the will should clearly state that we each assume everything.
However, I asked him to add my name to the deed. He refused. This is a second marriage for both of us. He said that he never wants to be put out of his home. Well, neither do I! His daughter is not married, and not as well off financially as my daughter. Should I be concerned?
Second Wife
Dear Second,
No one — husband or wife — should give up their hard-won financial independence when entering a marriage, and agree to an unequal balance of power. Your first mistake was to sell your home and give up the appreciation in that property over the last 15 years, especially as you did that based on a promise.
If you were to pool your assets and give up your home, it would have made more sense to put both your names on the deed of your marital home. People can promise to make a will, and then renege on that promise, or indeed simply change their will.
New Jersey is an equitable-distribution state. In the event of a divorce, assets are split equitably by the divorce court, in a manner that is deemed fair by the judge but not necessarily 50/50. Instead, it will take into account such factors as the duration of the marriage, and the income of the respective parties.
“Some main categories of separate property include property acquired prior to marriage, property acquired during the marriage as gifts from third parties or by inheritance, or property acquired after the filing of the divorce complaint from post-complaint efforts,” according to the law firm Riker Danzig.
“Your first mistake was to sell your home and give up the appreciation in that property, especially as you did that based on a promise.”
“Courts have held that separate property must be kept separately, and not allowed to be co-mingled to prevent it from being identified as marital property. In addition, if separate property is improved during the marriage, it may also become marital property.”
However, the fact that you used your money and/or a joint account to pay the mortgage and remodel this home likely commingles that property, and further complicates your case. Furthermore, laws vary by state as to what a spouse can leave third parties who are not their spouse in their will.
“The law provides that if a married person dies domiciled in this state, the surviving spouse has a right of election to claim what is known as ‘an elective share,’ which is one-third of the augmented estate,” according to Hanlon, Niemann & Wright, a law firm based in New Jersey.
“Laws vary by state as to what a spouse can leave third parties who are not their spouse in their will.”
The surviving spouse can claim about one-third of their deceased spouse’s estate, regardless of a will, the law firm adds, but you must not have been living separate and apart in different homes and/or not ceased to cohabit as man and wife, it adds.
“The court will have to value a spouse’s own independent property in order to decide what, if any, effect it will have on the dollar value of the elective share,” Hanlon Niemann & Wright adds. “It is significant that the surviving spouse is entitled to one third of the augmented estate only to the extent that its value exceeds the value of his/her own independent property. New Jersey’s statute is unique in that regard.”
So what can you do now? No. 1. Keep the receipts and bank transactions, and talk to a lawyer privately about your finances and marital assets. No. 2. Consult a lawyer who specializes in estate law. This is a good lesson for anyone entering into a marriage. Ideally, you should feel safe and secure in your marriage till death — or divorce — do you part.
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