Does a Deed of Gift override the premarital agreement giving me right to half the house?
Full Question:
Answer:
The answer will depend on the language in the postnuptial agreement and the circumstances involved. Such agreements often provide that gifts are to be considered separate property. A gift deed is a deed in which the consideration is not monetary, but is made in return for love and affection. It is a document which transfers property to another as a gift. Such a deed is often used to present someone with a gift.
Gifts between spouses pose problems. Many courts presume gifts from one spouse to another to remain marital, rather than separate, property. Some courts allow this presumption to be rebutted with clear evidence that the gift was intended to be the property only of the recipient. Courts can also look at factors such as the intention of the giver, along with whether the gift is subsequently used by one or both spouses.
A postnuptial agreement is a written contract created by two people after they are married. The agreement typically lists all of the couple's property, including assets, liabilities, income and expectations of gifts and inheritances, as well as their post-marital debts. A postnuptial agreement specifies how post-marital property, as well as the appreciation, gains, income, rentals, dividends and proceeds of such property, should be distributed in the event of death, separation or divorce, rather than protecting assets from creditor claims against debts of a spouse. It will generally be upheld by the court if it was entered into knowingly, freely, and fairly. It may be invalidated if dishonesty, fraud, coercion, or duress is involved. The spouses should disclose their assets and debts in writing and have the opportunity to consult an independent attorney.
"Kitchen sink" states are all-property jurisdictions that include separate property in the marital estate and treat such property as eligible for distribution in a divorce.
The "kitchen sink" states are Connecticut, Indiana, Kansas, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, North and South Dakota, Oregon, Vermont, Washington, and Wyoming. Eight other states include separate property when the court finds a need. These are Alabama, Alaska, Arkansas, Hawaii, Iowa, Minnesota, Ohio, Wisconsin. In these jurisdictions, gifts between spouses and inheritances can become very much of an issue.
