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Terri, Mediator
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I reside in Tennessee. My husband owned property when we ...

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I reside in Tennessee. My husband owned property when we got married, and he paid for the house to be built on the property for our primary residence. We later got a cashout refinance mortgage for my half of the property to pay him back his half of the equity in the property. The Deed of Trust has both our names on it, but it has come to my attention that the warranty deed was never corrected to show both our names. His will states that his daughter and I will each receive half of his estate upon his death (in the form of charitable trusts). Would that mean that his daughter would receive half of the equity in our primary residence? I believe that is what he intends, but I don''t think I should have to give up half the equity in the home we shared as a married couple. What are my rights?
Submitted: 9 years ago.
Category: Legal
Expert:  Terri replied 9 years ago.


You have a very good reason to be concerned about this. Fortunately, there are several situations that are facing you at the moment. In the end you will be happy.

First I would let you know that a General Warranty Deed is basically a document that assures the buyer of the property that there are no problems with the property and if there are, the seller can be sued to have them corrected. The problems that I am referring to are things such as defects in the building structures on the property, liens against the property, or easements that have not been disclosed.

A Deed of Trust is very different. A Deed of Trust is virtually taking property that is being purchased by an individual, whereby the purchaser gives up his right to ownership of the property and places it in trust to another party (usually the county abstractor's office) for the purpose of liquidating (selling) the property in the event that the purchaser doesn't pay for the property as promised. The trustee "so to speak" will sell the property and give the proceeds of the sale to the bank or mortgage lender that financed the property. If by chance this is taken care of and there is a balance of excess money, these monies will be given to the individual that was buying the home.

Finally, a charitable trust generally benefits a charitable cause, "hence the name" charitable trust.

Now the good news: Tennessee recognizes is known for being a community property state. What this virtually means is that any thing that enters a marriage, via purchase or gift, belongs to both the husband and wife. With this, even if your husband had made the provisions in his will as you have stated, you would still be able to show the courts that the following:

1. You took out a loan to pay him for 50% of the land that he had purchased, either prior to or during our marriage.

2. The home that was built on the property was done after the two of you were married.

3. All property taxes and home improvements were shared equally between you based on the fact that you were married when they were paid for.

4. The Deed of Trust bears both of your names and in this it is easy to see that the original Deed of Trust for the property is no longer valid in that the new Deed of Trust bears both of you names.

6. Your husband can't place property that is jointly owned with you in a trust that would give a third party (your step-daughter) a portion of the equities contained therein, without you have both signed the paperwork that would initiate the trust.

Now I would like to suggest the following to you: If your husband is still living, I would have this taken care of just to save yourself headaches in the future. The reason that I say this is because if he were to pass away without having it taken care of and his daughter is a greedy little one, all though you would still be able to claim everything because it is yours by right, it may get into an ugly legal action . She wouldn't win a case by any means; however, it would be time consuming and initially expensive.

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Customer: replied 9 years ago.
Customer- Please explain what you're meaning when you say I should have this taken care of. Yes, my husband is still alive, but he truly believes his daughter has a right to half the equity in our house. The reason he's leaving his money in charitable trusts is so that she and I will have monthly incomes based on the trust funds, but upon mine or his daughter's deaths, nobody (not my children, ex-husband, nor his ex-wife) would benefit from the money since it would be going to charity. We had signed prenups before marriage saying that we would have separate financial affairs except for items that we jointly took title (such as our house that was built after we married). Also, I alone make the house payments on our mortgage, and we jointly pay taxes and homeowners insurance. Also, in looking on the internet, I don't see Tennessee as being listed as one of the nine community property states.
Expert:  Terri replied 9 years ago.


At the end of this post you will find Tennessee Statute - Chapter 36-4-121 it defines and describes marital property. This is discussed in relation to individual;s that are experiencing a divorce; however, it shows you that Tennessee is a community property state; however, they refer to is as Marital Property and Common Law.

Of interest, A spouse is just as entitled even if they never wreaked outside the home, see paragraph D. Hope this helps you.

What I meant in saying that you should get this taken care of is this. First let me tell you tat I do understand your position as I have been married before and lost a husband, and I do agree with you 100% (so does the law) that no one has any right to the monies in the event of your husband's death right now but you.

Taking care of it would mean that he needs to have the warranty deed corrected and get rid of the charitable trust.

What the two of you might consider is a will or trust that entitles both of your children to the entire estate after you have both parted. Your children are just as entitled to a portion of anything that is left because you are their mother. Unlike a general will, a trust prevents one spouse from making changes to suit their wants after the other spouse passes.


(1) (A) "Marital property" means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property.

(B) "Marital property" includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.

(C) "Marital property" includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.

(D) As used in this subsection (b), "substantial contribution" may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.

(E) Property shall be considered marital property as defined by this subsection (b) for the sole purpose of dividing assets upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division.

(2) "Separate property" means:

(A) All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, as amended;

(B) Property acquired in exchange for property acquired before the marriage;

(C) Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);

(D) Property acquired by a spouse at any time by gift, bequest, devise or descent;

(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and

(F) Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

(c) In making equitable division of marital property, the court shall consider all relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;


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