quitclaim

At that time, he had an attorney draft a trust stating that if he were to die before me, I could live in the house until I died, with nothing said about what happens to it after that. He said he would file the trust document if I signed a quitclaim. 

Believing him, I signed, but he never followed through on filing the documents. He did deposit those funds into a separate account, but we used it to buy a car, do some traveling, do upgrades on the house, etc. I also used funds from my 401(k) to build a fence.

If he dies before me, where does that leave the house? Is the trust valid if he never filed the papers? He has two grown sons who would probably fight me for ownership of the house, and I wouldn’t care to spend my retirement funds fighting.

The Wife 

Dear Wife,

Never sign anything without seeking legal counsel first.

It does not make sense to me that he would ask you to sign a quitclaim on a home that he bought with his inheritance. Inheritance is deemed separate property under California law, so the home he purchased with that money would also be regarded as separate rather than marital property — unless, of course, he put your name on the deed. 

You did not have to sign the quitclaim deed, but he obviously used his promise that you could live in the house for your lifetime and the story that he bought this house with an inheritance as leverage for you to sign it. My guess is he would use the quitclaim as evidence that this house is, indeed, separate property, if you ever decided to challenge that in divorce court.

Given those circumstances, however, there’s no reason he would not follow through on his word and give you “right of occupancy.” It may be that he had second thoughts, and wants his sons to inherit the property upon his passing. Or he may be dragging his feet — perhaps indefinitely.

Did your husband even have an inheritance?

There is another possibility: Your husband did not, as he said, buy the house you are living in with an inheritance, but told you that to make you believe you did not have any claim to the property. If he bought that house with marital funds — that is, money earned during your marriage — it would be community property and split 50/50.

“The money mentioned does not appear to have been used to buy the house,” says David Cowan, LegalShield partner attorney at provider firm Parker Stanbury. “It seems that it was placed in a 401(k) and used for other items. This raises a concern that the house was not purchased with the husband’s separate property. This also makes the impact of the quitclaim need more significant and not in the wife’s favor.”

There are other areas of confusion in your letter. “Trusts are not filed,” Cowan adds. “They are created and signed/executed, but there is no filing of the trust while both parties are alive. It is always prudent to ask for a copy of a trust to make certain it says what you think it does. Of course, there is no obligation to give a copy.”

Another sliver of hope: Daniel McKenzie, an attorney with The McKenzie Law Firm in Centennial, Colo., wonders whether you received any benefit in exchange for signing your husband’s quit-claim deed. “If you signed the deed based on a promise that was not fulfilled, and did not receive any benefit in exchange, you may have several contractual bases for having it rescinded,” he says.

There could still be claims for reimbursement 

Although the home would belong to your husband if he acquired it solely with his separate property, there could be claims for reimbursement or an interest in the home if your funds or community funds were used to purchase or improve the home, says Marc M. Stern, a partner at Greenberg Glusker in Los Angeles.

He recommends you ask your husband to confirm that he set up a trust and that you will have the right to live in the home for the rest of your life. But you are still in a tricky position: Your husband can change his mind at any time during your marriage unless he is contractually obligated, through a written agreement you both sign, to make the gift to you, Stern says.

Another possible outcome that could be favorable to you: If your husband deposited his separate inherited funds into an account holding community property, “and the funds to purchase or improve the home were then taken from that account, the home might not be characterized as 100% husband’s separate property,” Stern adds.

Otherwise, your future in this home depends on your husband.

More from Quentin Fottrell:

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My stepdaughter is executor to her late father’s will, and believes she’s now on the deed to my home. Is that possible?

I inherited $246,000 from my late mother and used $142,000 to pay off our mortgage. If we divorce, can I claim this money?

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