Q: My husband used his inheritance to purchase our home outright. I signed a quitclaim deed to him to put the property into his living trust. The condition was that if he died before me, I could live in the home until my death. The problem is that he never signed the living trust. What happens to the property or to me if he were to die before me?
We live in California, this is a second marriage for each of us, and we both have adult children from our prior marriages.
A: You left out one critical piece of information from your question: We’d very much like to know if your deed was to him personally or to his living trust. If you quitclaimed the home to him personally, he now owns your share of the home subject to any marital interests you may still have in the home. On the other hand, if you quitclaimed the home to his living trust and the trust was never created, the deed may be an invalid deed and you may still own your interest in the home.
Let’s take a step back and talk about your ownership interest in the home. At one point, and perhaps still to this day, you and your husband owned the property together as joint tenants with rights of survivorship. This would have meant that if you died, your husband would own the entire property automatically; and if he died, you’d own the entire home automatically.
At that point, you signed a quitclaim deed over to him or his trust. The first thing that you'd need to determine is whether the deed was even filed or recorded. If it has not been recorded or filed, you can destroy the document and keep the status of the title as it was. On the other hand, if the document was recorded and you transferred ownership to your husband, he's the sole owner of the home subject to your marital rights under California law.
Again, if the trust doesn't exist, your quitclaim deed transfer to an entity that doesn't exist would create a situation where you could claim that you still own your interest in the home, but the home may now be owned by the two of you as tenants in common rather than joint tenants with rights of survivorship.
And it could be even more complicated: If your husband now owns the home and you have marital rights in the home, upon his death, you may still be entitled to a share of the home under your husband's will, if he has one, or by law. But his children would also own a share of his share of the home. At that point you'd co-own the home with his kids. How that would work out depends on your relationship with his grown children.
There are other permutations and directions we could go with your rights, his rights, the trust’s possible rights, and his kids’ claims to the home, among many others.
Instead, why don't you try to determine what it is that you own, what he owns, what his intent is regarding the home (he might want to execute a life estate, which would entitle you to live in the home until your death), and what your intent is, and make sure that what you and he both want are in writing.
You should go to an estate planning attorney to sort things out and make sure both of you are on the same page about who owns what, who gets to stay where, and for how long into the future. The estate planning attorney can, and should, guide you through the process and make sure that the proper documents get signed and then get filed or recorded.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (fourth edition). She is also the chief executive of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, ThinkGlink.com.