Category Archives: real estate law
Acquiring an interest in a marital home in NJ depends on a number of factors. Many clients have posed the question: Do I have an interest in my marital home, even if my spouse owned it prior to the marriage? The short answer is, that depends on the facts of your case. Every case in matrimonial law, is very fact specific. A general answer to the question could change, or turn on one small fact. It is imperative that if you have any questions or concerns regarding your rights to an interest in a marital home, that you seek a full consultation, so that the particular circumstances of your matter can be properly analyzed.
In general a non-titled spouse can, in fact, acquire an interest in a marital home, which serves as the Marital Residence during the marriage even if they did not have interest prior to the marriage. This can be accomplished in a number of ways, most commonly as set forth below:
4 Ways to Establish Interest a Marital Home
1. Purchase in Contemplation of Marriage:
If the home is purchased within a reasonable period of time prior to the parties’ engagement or marriage, and they move into it together with the intention that it will be their marital home, it is a full marital asset, and completely subject to equitable distribution. Remember, it is equitable not equal. So if one party put down $50,000.00 from a premarital home, or gift from parents, etc. there is room to argue a disproportionate amount of division or credit owed back. The more time that passes between purchase and the divorce, the less weight premarital asset usage or gifts from parents will have. Gathering fact about these circumstances is crucial: did the parties both go with the realtor to look for houses? Did one spouse have a credit problem and that is the only reason they are not on the loan and deed? Etc.
2. Mortgage principal pay down.
If marital earnings are used to pay the mortgage (regardless of who’s paying it—titled or untitled spouse) the untitled spouse will obtain an interest of 50% of the mortgage pay down. The untitled spouse does not get a dollar for dollar credit on mortgage payments, since there is a reasonable rental value to living somewhere and only actual equity is divisible.
3. Capital Improvement made during the marriage
Capital Improvement made during the marriage with marital indebtedness or marital effort. If a home, which is otherwise a passive asset (only increases in value due to market conditions) is improved by the parties putting on an addition, adding square footage, installing essential enhanced systems such as HVAC where there was none before, adding decks, renovating kitchens or baths, the value of the capital improvements, or enhanced appraised value received as a result of the capital improvements– could be shared. This turns on facts. For example, if the improvements were funded with another separate asset—inheritance funds, gifts from a parent, sale of another pre-marital asset, then the untitled spouse would not necessarily acquire an interest. However, if the improvements were funded by both or one of the parties’ marital earnings, or a joint mortgage, then yes, the untitled spouse would acquire an interest.
4. Adding Untitled Spouse’s Name to Deed.
This is the most common way pre-marital homeowners either purposely or unwittingly, transfer interest a marital home, to the untitled spouse. The minute the titled spouse puts the non-titled spouse on the Deed, it is considered a “marital gift” fully subject to equitable distribution. The amount of the interest will again, turn on the facts: for example, how long has the home been in both names? What contributions or improvements were made to the house by each or both of the parties?
For further information on your interest in a marital home, or to discuss your particular circumstances, please contact our office for a consultation.
New Jersey real estate laws around inheriting real estate can efficiently and effectively keep a family home or property in the family. Maintaining a family property in the family legacy is an admirable and attainable goal for many parents and grandparents. “Life Estate” transfers are a great option in many families.
In New Jersey, a person inheriting real estate by Will, by intestacy laws, or a house may be deeded shortly prior to the death of family members. Under each circumstance, the child or children often wish to keep the property in the family. In order to preserve the family home or property, there are a number of issues that must be addressed to pass the opportunity of home ownership to your descendants. These considerations should be reviewed with an estate planning or real estate attorney to ensure each category is properly and adequately addressed with the family’s objective in mind.
The following is a truncated list of the many considerations that a parent or grandparent should consider when deciding to pass on a property or home to their descendants, either by Will, intestacy or gift. To view a complete publication prepared by the Law Offices of Puff & Cockerill, LLC, including detailed sections to the following 21 considerations, please read the full article here>>>
Things to consider when inheriting real estate in NJ
1. Tax Basis for Capital Gains Tax when inheriting real estate
2. Real Estate Taxes
3. Due Diligence
4. Title Report
6. Risk of Lack of “Due Diligence”
7. Homeowners Insurance
8. Existing Mortgage
10. Being Sued as Grantee
11. College Planning
12. Gift Taxes
13. Medicaid Planning
14. Disability of Your Children or the Grantees
15. In Whose Name Should the Property be Transferred To
16. Possession (inheriting real estate)
17. Joint Ownership Among Siblings or Others Who are not Married
18. Who is Your Roommate?
19. To Obtain a Mortgage/Home Equity Loan
20. Senior Freeze Act or Real Estate of Seniors
21. Your Decision
We encourage all individuals and families who wish bestow upon their children or grandchildren their family home, before or after death, to review their estate planning documents, including their wills and Deeds, in light of foregoing considerations. If you do not have an estate plan, now is the time to schedule a consultation with an estate planning attorney to formulate and effectuate a plan.