Home Ownership and New Husband

I recently got married and we now live in the home that I have always had. The mortgage is in my name alone. If I would die, would the house and mortgage automatically go to my husband or am I required by law to have his name also added to the mortgage?

Congratulations on your recent marriage. The answer to your question could depend a a number of factors. Did you sign a prenuptial agreement or post-nuptial agreement that addresses the division of assets generally, or the house in particular? If so, then those agreements may dictate what you have to do. In the absence of any agreements, the house was owned by you before the marriage and should remain separate property unless you change the title by adding your husband as an owner (changing the title or deed). However, the laws differ from state to state and issues might arise as to whether, even if you don't make a change, your husband might have a claim on the property if he pays for some of the mortgage payments, upkeep, etc.

You asked about the mortgage. If the rate is low relative to current rates you'd best be cautious about transferring ownership (deed) to include your new husband as a change in the title (ownership) could be an event that enables the lender to call the mortgage. In light of recent increases in interest rates you would not want to jeopardize a lower interest mortgage.

You asked whether on your death the house (and mortgage) would automatically go to your husband.

• If the deed remains in your name alone then the house would not transfer automatically to your husband, but rather would depend on the terms of your will or the terms of state law.
• State law would likely give your husband a right to some portion of your assets if that right was not waived in a prenuptial agreement (even if your will did not give him anything). So even if you did not wish to give him an interest in the house, state law might.
• If your will bequeaths the house to your husband he would get it (although there may be reasons to use a trust for his benefit to protect the house).
• If you added your husband to the deed, depending on how the deed is worded, the house might transfer directly to your husband. Although the law and terminology can vary by state, if the deed shows your husband and you as "joint tenants with rights of survivorship" or "tenants by the entirety" then your husband would immediately get the ownership of the house on your death. While this approach can avoid probate, it might defeat other more important planning.

Finally, you asked whether you are required by law to have his name also added to the mortgage. You might have meant "deed". Its the deed that indicates ownership and passes title to your husband on your death. The mortgage is the document that secures the debt or loan the bank made to you. The mortgage is what gives the bank/lender a security interest in your house in case you default by failing got pay. As far as adding your husband to the mortgage, see the comments above. Adding your husband to the deed could trigger (accelerate) the mortgage. If you obtain the lender's permission to add your husband to the deed as a co-owner (so that on your death he'd get the house automatically) the lender would probably require that your husband's name be added to the mortgage as a co-borrower.

As long as you're tackling the ownership of your house decision by looking at all the legal issues, you should consider asset protection too. If you are sued and the house remains solely in your name, your claimants could get the house. If your new husband is a doctor and you're a homemaker, it might be safer to leave the house title as is, in your name alone. If you both have potential lawsuit issues (ex-spouse, malpractice, etc.) in many states (but you have to check with a local lawyer), changing the title to you and your husband as tenants-by-the-entirety can provide some protection.

Tax issues need to be considered. If your husband is not a US citizen there could be git tax issues on transferring the ownership to include him.

Sorry, so long winded, but although home ownership is so common there are often lots of issues that affect seemingly simple transactions. And even if the answer you select is ultimately a simple one, it doesn't mean there are not a lot of issues and options that you should explore to make sure you get to the right answer. You'd best see a local real estate attorney, or perhaps a general practice attorney that has real estate, estate and family law knowledge because all three disciplines (and possibly asset protection and tax issues) as well, could be necessary to get you the right answer.

Good Luck!