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Dear Quentin,
My husband and I have been married since 2009. We don’t have any children, and there are no previous marriages. I have asked him if I need to be added to the deed of our home, but he just states that if he dies, I will immediately get everything.
We don’t have a will or living will. We have life insurance through his employer. Should I be added to the deed on our condo? I want to ensure that I would be able to keep the home if something should happen to him, or if we divorce.
We currently have 10 years left on our mortgage.
Wife in Colorado
Dear Wife,
Colorado is an equitable distribution state — not a community property state — so assets are divided equitably in a divorce. Marital property is as an asset acquired during the marriage. Separate property can, however, become marital property. For instance, a property can become commingled when one spouse uses marital funds to pay off the mortgage and/or make significant improvements to the property.
You don’t say when your husband bought the condo and/or whether you contributed to the purchase. If your husband bought your home prior to your marriage it would likely be treated as separate property if you divorced. If he purchased it during your marriage, it would seem like an archaic or, to be less charitable, a controlling move to not put your name on the deed. In that case, it would be divided equitably.
The attorneys at Graham Law in Colorado Springs, who specialize in family law, write that the division of assets in an equitable distribution state is dependent on a variety of factors: “One question we family lawyers field fairly often is, ‘What if she wants to give me more than half of the assets.’ Or, ‘I’ll give her everything, I just want to get this over quickly.’ Will courts allow for unequal asset division in a divorce when the spouses agree to it?”
The answer, however, is not clear cut. “When a judge decides the matter, you can normally expect assets to be divided as close to equally as possible,” the firm says. “However, courts generally prefer that parties have a settlement they both agree with, rather than the court having to make a decision which will leave someone quite disappointed with the asset division.” (Colorado is a no fault state, so couples do not need to explain why they are getting divorced.)
If your husband died without a will, you would receive all of his estate, assuming he has no children or other legal heirs. If your husband has other legal heirs the estate is divided in accordance with the rules of the state of Colorado. Tell your husband that it would give you peace of mind to be added to the deed, as you are partners in life and it’s your home too. Without a will, your home would go through probate if your husband predeceased you, and that can be a prolonged and expensive process.
But if he purchased the property prior to your marriage, he may prove reluctant.
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