Q: I added my son and my two daughters’ names on
the deed to my house when my husband died. Now my son is in
the middle of a divorce and his wife is claiming that she is
going to get half of my house in the divorce. Is this
true? Even if it is true, should she get half even though
she was at fault in breaking up the marriage? What should I
do? Can I take his name off the deed right now?
Your question illustrates some of the problems that can
arise when you add another person’s name to your deed. By
adding your children to your deed you have given them a gift
of a partial interest in your home. Unless there is
specific language in the deed stating different ownership
percentages, you and each of your children now own a
one-fourth interest in your home. As I explained in a
previous Question & Answer there are different types of joint ownership
with different legal consequences. The language in the deed
is very important. If the deed states “joint tenants with
rights of survivorship” this means that upon the death of
one of the joint tenants his/her share will pass
automatically to the surviving joint tenants. If the deed
simply states “joint tenants” the property will pass
automatically to the surviving joint tenants upon the death
of one of the joint tenants. However, unlike “joint tenants
with rights of survivorship”, if one of the joint tenants
transfers his/her interest to a third party this will
destroy the joint tenancy and create a “tenancy in common”.
A tenancy in common means that upon the death of one of
the tenants in common that person’s share would pass according to her/her
will or to his/her heirs (if the person died without a will) and would have to go through probate. It would not
pass automatically to the remaining tenants in common. If
the deed simply lists yourself and your children as grantees
with no language specifying the type of joint ownership,
this will create a tenancy in common. The various types of
joint ownership affect not only what happens when one of the
joint owners dies but also affect the ability of creditors
and divorcing spouses to reach the ownership interest of one
of the joint owners.
Your son’s ownership interest in your home is now subject to
his divorce proceeding. All of the property owned by either
party to a divorce will have be divided up in a property
settlement as part of the divorce judgment, or, if the
parties cannot agree and the case goes to trial, the Family
Court judge will make the decision as to the division of the
property. There are no hard and fast rules about how
property is divided in a divorce. Your son’s wife does not
have an automatic right to all or a part of your son’s interest
in your house. Michigan law makes a distinction between
marital property (generally property that was accumulated
during the marriage) and separate property (such as property
owned by a party prior to the marriage and gifts or
inheritances received by one of the parties). Your son’s
interest in your home would probably be considered as his
separate property, which would mean that his wife would not
be entitled to any portion of his interest. Michigan law
also provides that the Family Court judge can take fault
into consideration in making a decision about the division
of the property, so if your son’s wife was at fault in
breaking up the marriage then he could argue that he should
be entitled to a larger share of their marital property in addition to his
separate property.
I think it would be unlikely that your son’s wife would be
awarded any portion of his interest in your home. If by
some chance she was, then she would become a part owner of
your home, along with you and your daughters. If the
ownership is “tenants in common” and she was so inclined she
could force a sale of the home by filing a partition action
in court. If the ownership is “joint tenants with rights of
survivorship” she would not be able to do this. If the deed
simply stated “joint tenants”, then the provision in the
divorce judgment that transferred your son’s interest to her
would have the effect of breaking the joint tenancy and
creating a tenancy in common.
You cannot take his name off the deed. As I mentioned
earlier, the legal effect of adding a person’s name to a
deed is that you have given them a gift. Once the gift has
been completed it cannot be taken back. If you have
recorded the deed with the Register of Deeds then it would
be considered as a completed gift. As a general rule if you
never recorded the deed and simply put it in a drawer, this
would not be considered a completed gift and you could
“undo” the deed simply by destroying it. However, since
your son’s wife is aware of the deed and it may become an
issue in the divorce proceedings, I would not advise doing
this even if the deed was never recorded and just sat in
your drawer.
At this point you should wait until his divorce is finalized
before you try to make any changes to your deed. Any change
would require all of your children to agree. A previous Question & Answer has some more information on joint property that you
may find helpful.