Dolores M. Coulter

Attorney at Law

8341 Office Park Dr. Ste C

Grand Blanc, MI 48439

Phone:  (810) 603-0801




Joint Property

Dolores M. Coulter © August 2008 

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Q:      I added my son and my two daughters’ names on the deed to my house when my husband died.  Now my son is in the middle of a divorce and his wife is claiming that she is going to get half of my house in the divorce.  Is this true?  Even if it is true, should she get half even though she was at fault in breaking up the marriage?  What should I do?  Can I take his name off the deed right now? 

Your question illustrates some of the problems that can arise when you add another person’s name to your deed.  By adding your children to your deed you have given them a gift of a partial interest in your home.  Unless there is specific language in the deed stating different ownership percentages, you and each of your children now own a one-fourth interest in your home.  As I explained in a previous Question & Answer there are different types of joint ownership with different legal consequences.  The language in the deed is very important.  If the deed states “joint tenants with rights of survivorship” this means that upon the death of one of the joint tenants his/her share will pass automatically to the surviving joint tenants. If the deed simply states “joint tenants” the property will pass automatically to the surviving joint tenants upon the death of one of the joint tenants.  However, unlike “joint tenants with rights of survivorship”, if one of the joint tenants transfers his/her interest to a third party this will destroy the joint tenancy and create a “tenancy in common”. A tenancy in common means that upon the death of one of the tenants in common that person’s share would pass according to her/her will or to his/her heirs (if the person died without a will) and would have to go through probate.  It would not pass automatically to the remaining tenants in common.  If the deed simply lists yourself and your children as grantees with no language specifying the type of joint ownership, this will create a tenancy in common.  The various types of joint ownership affect not only what happens when one of the joint owners dies but also affect the ability of creditors and divorcing spouses to reach the ownership interest of one of the joint owners. 

Your son’s ownership interest in your home is now subject to his divorce proceeding. All of the property owned by either party to a divorce will have be divided up in a property settlement as part of the divorce judgment, or, if the parties cannot agree and the case goes to trial, the Family Court judge will make the decision as to the division of the property.  There are no hard and fast rules about how property is divided in a divorce. Your son’s wife does not have an automatic right to all or a part of your son’s interest in your house.  Michigan law makes a distinction between marital property (generally property that was accumulated during the marriage) and separate property (such as property owned by a party prior to the marriage and gifts or inheritances received by one of the parties).  Your son’s interest in your home would probably be considered as his separate property, which would mean that his wife would not be entitled to any portion of his interest.  Michigan law also provides that the Family Court judge can take fault into consideration in making a decision about the division of the property, so if your son’s wife was at fault in breaking up the marriage then he could argue that he should be entitled to a larger share of their marital property in addition to his separate property. 

I think it would be unlikely that your son’s wife would be awarded any portion of his interest in your home.  If by some chance she was, then she would become a part owner of your home, along with you and your daughters.  If the ownership is “tenants in common” and she was so inclined she could force a sale of the home by filing a partition action in court.  If the ownership is “joint tenants with rights of survivorship” she would not be able to do this.  If the deed simply stated “joint tenants”, then the provision in the divorce judgment that transferred your son’s interest to her would have the effect of breaking the joint tenancy and creating a tenancy in common. 

You cannot take his name off the deed.  As I mentioned earlier, the legal effect of adding a person’s name to a deed is that you have given them a gift.  Once the gift has been completed it cannot be taken back.  If you have recorded the deed with the Register of Deeds then it would be considered as a completed gift. As a general rule if you never recorded the deed and simply put it in a drawer, this would not be considered a completed gift and you could “undo” the deed simply by destroying it.  However, since your son’s wife is aware of the deed and it may become an issue in the divorce proceedings, I would not advise doing this even if the deed was never recorded and just sat in your drawer.

At this point you should wait until his divorce is finalized before you try to make any changes to your deed.  Any change would require all of your children to agree.  A previous Question & Answer has some more information on joint property that you may find helpful.




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