In May of 2011, I bought a house in Volusia for cash (but now have a HELOC on it). In October of 2011, (five months later) my only child mar...

Question

In May of 2011, I bought a house in Volusia for cash (but now have a HELOC on it). In October of 2011, (five months later) my only child married. At the time of purchase, I neglected to do something about making him the sole beneficiary of the house should I pass away, and thus, in the event of his possible divorce, his wife may now benefit from said real estate. I should note that they live in the house with me (we live in separate quarters) and the relationship is fine, but I still would like to find a way to ensure that only my son receives ownership of the house. Is there anyway to retroactively make him a joint owner? Or some other legal way make sure he gets to be the sole owner of the house should I die?

Answer

To simply answer part of your question, there is no way to "retroactively" add him to the ownership of the house/property. If you were to add him now it still would not prevent him from adding someone else in the future after you are deceased. Further, there could be negative tax implications for adding him to the deed while you are still alive, because he would then have the same tax basis as you, so that if the house appreciates significantly in the future he may not enjoy the gain without having to pay the IRS. With that said, your question may not be as simple as you think.

You may want to consult with an estate planning lawyer for more specific answers and guidance. However, generally speaking, proceeds from an inheritance are exempt from the marital property estate in the event of a divorce. Despite that, there are several ways a spouse could lay claim to an inheritance in the event of a divorce. In the case of real property/home, if the non-inheriting spouse contributes to the upkeep, maintenance, taxes, insurance, etc. then he/she may claim some interest in the property at the time of the divorce. At the very least they may be entitled to reimbursement for their contributions during the marriage if the amounts an be identified. Also, like I mentioned previously, your son could add his spouse to the deed at any time after your death which would convey an interest to his spouse.

There are additional issues related to ownership that could arise if he were to die without a will, or if he has minor children at the time of his death and the property is his homestead. Before you act you would be best served by scheduling an in person consult with an estate planning attorney in your area and pay a consultation fee for answers and guidance. You may also want to take this opportunity to update your estate planning documents as well. There are ways to obtain the outcome you seem to want, such as Trusts of various types, but it will take more than a simple will and you may not want to incur the expense and headache involved. Again, a consultation with an experienced estate lawyer will probably provide you with many answers to your questions.

Good luck, and I hope this answer helps.