Title Tip – Marital Interest
There are a couple of areas of Marital Status that we encounter frequent confusion over. Be aware of the following when dealing with your customers.
Often we will see a property that has been deeded to one person – and that person is married. This property may have been conveyed to the person before they were married. As soon as the marriage takes place – the spouse has “marital interest” in the property. The original fee owner cannot sell or mortgage this property without the consent and signature of their spouse.
Be aware however that the spouse does NOT have fee interest in the property. In order for the spouse to become a fee owner, it will take a deed FROM the original fee owner …… TO the fee owner and his spouse. Now the spouse will have fee interest in the property and not just the marital interest they had before.
So, does this matter? The answer is YES! If the original fee owner should die without conveying a fee interest to the spouse, the spouse would no longer have any interest in the property. Because of death, the marriage no longer exists. Marital interest doesn’t exist either. So if the spouse never became a fee owner, their rights to the property have not been established with a deed. (The deceased MAY have a will, which could disposition their property to their spouse…….)
It makes a difference if there is a future divorce as well.
Also be aware that not all states are the same with their real estate law. What worked in another state, might not be the same in Minnesota. (“I don’t think we’re in Kansas anymore Toto!”) So make sure your customers are giving this adequate consideration – and seeking competent advice if they aren’t clear on what they are doing. Some consideration early in the process can save them a LOT of problems later.
Disclaimer – this information is NOT legal or financial advice, and should not be used as a substitute for the same. It is offered for informational purposes only. Many different factors can influence the proper course of action for a particular situation. Please seek the advice of a qualified professional for guidance with your specific transaction.