A question that often comes up for both my Real Estate clients and Estate Planning clients concerns the signatures required for Deeds.  This is very much a question when it comes to married persons.  This most commonly comes up when dealing with the gamily homestead.  Minnesota has an easy method to remember this.  You should always think “One to sell and two to buy.”  Generally speaking, it only takes one spouse’s signature to buy property, but it takes both signatures to sell.

Most deeds regarding the homestead are void at the outset if both spouses don’t sign the deed.  This includes Transfer on Death Deeds.  However, there are some exceptions.  Only one signature is needed to sign a purchase money mortgage and only one spouse needs to sign a severance of joint tenancy.  Most spouses hold their homesteads under joint tenancy.

There are two basic ways for spouses to hold title to their homestead.  These are tenancy in common and joint tenancy.  Under joint tenancy, if one of the spouses dies then the other spouse automatically gets their share of the title.  Under tenancy in common, the spouse could give their share of the property to someone other than their spouse should they die.  Most married couples never worry too much about whether their spouse would attempt to give ownership of their home to anyone other than them if they pass, but it has happened before.

I recently responded to a question on attorney referral site Avvo regarding this same issue.  A concerned child posted a question because his mother had recently passed.   His father soon discovered that joint tenancy did not exist at the time of his wife’s death.  He did not automatically inherit her share of the property.  The poster doesn’t mention whether or not she gave the property to someone else such as a different lover, a different relative, or a charity.  This is certainly possible in Minnesota.

Under Minnesota Statutes section 507.02 and 500.19, only one signature is required to sever a joint tenancy.  Severing a joint tenancy removes the automatic inheritance of the spouse and makes it possible for the spouse to leave their portion of the property to someone other than their marital partner.  A spouse may record this severance without ever giving notice to their wife or husband.  The only way to be sure this hasn’t occurred is to review the status of your title regularly.  I recommend that the status of titles be reviewed at the county recorder as often as you review your estate plan for updating.  This can allow you to catch things like this should you be in a rocky patch for the marriage.

So what happens if your spouse did something like this without your knowledge and then dies?  Do you have to just accept that you don’t own the all of the home you built together?  Not necessarily.  There is a public policy against allowing one spouse to significantly disinherit the other.  We don’t want spouses that could otherwise support themselves to be left destitute after the death of their spouse simply by their spouse disinheriting them.  In Minnesota, you have two choices upon the death of the spouse if that spouse had a will.  You can take your inheritance under the will or you can elect to take your share under Minnesota Statute section 524.2-202.

This statute provides that you can elect to take under the will or ignore the will and take a percentage of the total estate of the spouse depending upon the number of years you were married.  This begins with 3% of the augmented estate for one year of marriage and continues on to 50% of the estate if you are married 15 years or more.  What’s more, this percentage is in addition to any rights granted to the homestead.  You will need to speak to a probate lawyer and weigh your options if you wish to take the elective share, but a spouse that has been significantly disinherited by another spouse certainly has options.

You should review your title and estate plan after every major life event from the birth of a child, to retirement, to acquisition of significant assets.  If you have any doubts about your rights then never hesitate to seek the advice of an attorney.  The law often provides for many basic protections if you should find yourself in the position discussed above.

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