Q: If a prenup disposes of real property must it be recorded
Our prenup gives me a life estate if my husband predeceases me, assuming I continue to pay the mortgage. Do we need to record notice of the life estate?
A: Your prenup is statement of intention. Only a recorded deed can pass an interest in land, or create a life-estate. For years our Firm has litigated this issue because the family law lawyers often don’t know how to handle the real property side of a separation agreement. It’s not hard, but it still requires cooperation among the parties to sign and record a deed.
Yes, one would generally want to update the deed itself to preserve rights in the property. Otherwise if the spouse owning property predeceases the property would go through their probate estate and then it would require asserting claims against the estate. Doing nothing to outline the rights now would have the potential of triggering wholly unnecessary contention (and possibly litigation) between the surviving spouse and the Personal Representative / other heirs.
Lifetime rights for a surviving spouse are commonly set up in one of three ways: A) by a life estate deed that names the life tenant and remaindermen or B) by a Revocable Living Trust (possibly an Irrevocable Trust) created during the owner's lifetime which outlines the other spouse's rights paired with a deed that transfers the property to such Trust or C) by a Will that outlines the rights to stay in the home. Of these options, A) or B) avoid probate.
While not a substitute for legal advice or engaging an attorney to prepare documents, I hope this general information helps!
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