Nowadays, many folks own property in their own name before they get married. Once married, many newlyweds often wonder – should I add my spouse to the Deed? While there are some good reasons to add your new spouse to your Deed, there’s also a reason why you shouldn’t.
Ultimately, there is no right answer.
When you put your spouse on the Deed to a property that you owned individually prior to marriage, you are creating what’s called a tenancy by the entireties. This is basically a special form of ownership available only to spouses and it affords special protection from creditors of only one spouse. For example, a creditor who is owed a debt by the husband cannot enforce its debt against assets owned by husband and wife together.
Tenancy by the entireties also means that when one spouse dies, the surviving spouse owns the property automatically. No need to prepare a new Deed, the survivor is the owner. As I’m sure you can imagine, this is quite a relief to a surviving spouse who has just suffered the loss of their partner.
When it comes to reasons why you shouldn’t add your new spouse to the Deed, the answer is simple – divorce and equitable distribution. If you choose not to put your spouse on the Deed and the two of you divorce, the entire value of the home is not subject to equitable distribution. Only the appreciation in value of the home from the date of marriage to the date of separation is subject to equitable distribution. In other words, if the property was worth $100,000.00 at the date of marriage, and at the date of separation it is worth $120,000.00, then only that $20,000.00 of appreciation in value is included in the marital assets.
Conversely, if you add your spouse to the Deed, then the entire value of the property will be subject to equitable distribution. The one spouse that owned the property individually essentially made a gift of the entire property to the marriage. (Of course, no one likes to think about divorce if they just recently got married.)
Most of the time, my clients decide to add their spouse to the Deed. They believe that the benefits outweigh the risks. The decision is personal and unique to every couple. If you are wondering what to do, feel free to contact one of our attorneys to discuss the matter in more detail.