I recently found out that New York is not a community-property state. I had thought it was for three decades of our marriage. I am not on the deed of the house I have been living in for the past 29 years. This house was purchased while I was engaged, six months before I was married. My husband contributed the down payment of $60,000.
At the time, it was decided to put only my husband’s name on the deed due to my $85,000 student-loan debt. I graduated from dental school one year prior to the home purchase. My husband-to-be also convinced me that having the house in his name only would protect us from any malpractice lawsuits I may incur during my career.
Well, here we are 29 years and three children later, and the house is still in only my husband’s name. I thought that since we were a married couple, I would also have a claim to the house. I was wrong. My husband had a stroke five years ago and I then became fearful of losing my home. He recovered, but there is always the fear of a recurrence.
A lawyer told us that I would inherit the house in the event there was no will, but would have to go through probate to validate this at a cost of $20,000. My husband said he is afraid I will divorce him if he adds my name to the deed — after 29 years of marriage. I have been by his side through several medical issues and two bouts of extended unemployment. I made a vow and I plan to keep that vow.
“‘I have been by his side through several medical issues and two bouts of extended unemployment.’”
I have worked throughout our marriage — part-time at first, but now I make double what my husband makes. We have always had a joint bank account. I am afraid that if my husband has another medical issue and requires care outside the home, the house that my children and I call home will be in jeopardy.
I also would like to avoid the cost and effort of probate court if he should predecease me. My husband is 65 and I am 57. He is in fair health and my family has a history of longevity. What is my actual state of ownership in this home, and how should I proceed in convincing my husband to add me to the deed?
I have told him that I deserve to and will own a home. If it is not the home we live in, then I am going to buy myself a house. This house would be an investment with one of my children to help them remain in New York. One positive point is that I would be a first-time home buyer and may qualify for incentives.
I have worked so hard in my life and given so much to my family. I feel that I deserve to own a home in my lifetime. My main fear is losing my home if my husband needs long-term care in a facility and the government seizes the home. Why are husbands so difficult to deal with?
Devoted and Fearful Wife
Dear Devoted and Fearful,
My first takeaway from your letter: You used the word “fear” or a derivative of that word four times — you even made it part of your sign-off. There’s a lot in your letter about what might happen but has not actually happened, including the unlikely prospect that you will lose your home due to your husband’s medical issues. It’s important to separate what-ifs from what-is.
Medical bills and credit-card bills are unsecured debt, while your home is a secured debt. No one other than the financial institution that issued the mortgage and holds the deed to the house can put a lien on the property. While it’s important to plan ahead for medical issues, going down this rabbit hole will not serve you, your husband or your children.
You are correct in that property purchased before your marriage is regarded as separate property in New York, which is not a community-property state. Regardless, this home was bought prior to your marriage. If your husband predeceases you without a will, you as his spouse would receive the first $50,000 and half of your husband’s estate, with the rest divided among your children.
“The costs of probate depend on a myriad of factors, including the size of the estate and whether probate is contested. ”
“Any separate property can become marital if the owner bestows ownership rights on a spouse through an overt agreement or by commingling the assets,” Brian L. Salamone & Associates, writes. “For example, if a couple moves into the husband’s house, but both contribute to the mortgage and maintenance from their own incomes, the wife gains ownership rights in proportion to her contributions.”
If your husband is afraid that you will divorce him, he could leave you the house in his will. Alternatively, he could also give you a life estate to live in the home after he passes, or put that property in a revocable living trust. That would help allay his concerns about a divorce. It’s not an ideal solution, especially given that you have been together for three decades and share three children.
I can’t help feeling that the fact that your husband purchased this house with his own money before you were married — using the somewhat flimsy excuse that you could be sued for medical malpractice later in your career as a reason not to put you on the mortgage or deed — was a red herring. Rather, this house seems to be a vessel for his own fears and insecurities.
The costs of probate depend on a myriad of factors, including the size of the estate and whether probate is contested. It could cost $10,000 or more. It’s an unusual and unfortunate situation, given your husband’s health and resistance to listening to your concerns. Perhaps if you approach this as a family to explain that you are all on the same page, he will listen.
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