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Spousal Rights to the “Marital Residence” – Dower, Curtesy and Their Replacement

The majority of homes which are resided in by a married couple were purchased by them together. In that case, NJSA 46:3-17.2 would normally control. This statute states that “A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife”. Basically, the husband and wife each have a title interest in the entirety of the property. Each owns 100% of the property and, with a few very limited exceptions, their individual interests can’t be transferred, levied upon or otherwise divided by one spouse (or its creditors) without the other’s consent (or a divorce decree). See also NJSA 46:3-17.4. At the death of one spouse, assuming they were still married, were not in the middle of a divorce and there is no marital settlement agreement in effect, the other spouse becomes the 100% owner of the property by operation of law. This happens outside the estate of the deceased spouse, and thus title passes to the surviving spouse regardless of what the deceased spouses’ will says (if there is one). No new deed is technically necessary to perfect this title interest, but it is not at all uncommon to record a new deed in such circumstances.

That said, it is still very common for a property to have been owned by one of the parties before the marriage, or acquired in only one of their names during the marriage for some reason (inheritance, business dealings, etc). At some point it becomes (or always was) the “marital residence” where the parties live together.  Traditionally in such cases the common law concepts of “dower” and “curtesy” would apply. These are very old legal concepts which intended to protect the rights of spouses, who could at the time be legally written out of a will. But in 1980 the legislature completely overhauled New Jersey’s probate laws. They created the “elective share” protection for spouses, which prevents anyone from being able to completely write a spouse out of their will. And they passed NJSA 3B:28-2, which stated that a marital residence which was acquired on or after May 28, 1980 is not subject to dower nor curtesy, nor is a marital residence acquired before that date by an unmarried person who later married on or after May 28, 1980. At the time of this writing, there are very few cases where these traditional rights of dower and curtesy might still apply.

The legislature did not get rid of all spousal rights in the marital residence property however. They replaced the traditional dower and curtesy title rights with a possessory right instead. NJSA 3B:28-3 now controls a spouse’s rights to a marital residence property which was owned by the other spouse prior to their marriage (so long as the marriage took place after May 28, 1980), or which was acquired by one of the spouses in their sole name during the marriage but was used as the marital residence.  This statute states that ” During life every married individual shall be entitled to joint possession with his spouse of any real property which they occupy jointly as their principal matrimonial residence…” This right runs with the property, and would apply to anyone who later purchases the property from one of the spouses. It can only be extinguished by agreement between the parties, death of either spouse, divorce or separation of the parties, or by “voluntary abandonment” of the marital residence.

New Jersey property law is extremely complex and this is just a brief summary of some of the relevant statutes which apply in these circumstances. Each transaction for real property in New Jersey is unique and these statutes may not neatly apply. There are other statutes which you may not be aware of, and which may apply in certain circumstances instead (such as family law/divorce statutes, certain equitable powers of a Chancery Court, and others). If you are purchasing or selling property with your spouse, or purchasing a property in which the seller or a prior seller before them might ever possibly have used as their marital residence (whether their spouse was ever on the deed or not), you should be extremely careful in how the contract and deed are drafted to ensure you are protected from a spousal claim later. Usually it is adequate to have the spouse, or prior spouse, sign and notarize the deed in such circumstances (and make sure you have title insurance just in case). But that’s not always possible and in some circumstances it doesn’t actually provide full protection. Utilizing an attorney who specializes in this area of law is essential. We at Cecinini Law Group have the experience of not only handling a large volume of ordinary real estate transactions each year, but also litigating actions for possession and clear title when things go wrong.

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