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  1. #1
    Deja_vu2000 is offline Junior Member
    Join Date
    Feb 2005
    Location
    Missouri
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    Cool Waiver of Marital Rights

    What is the name of your state? Missouri
    I purchased a in my name only house prior to marriage. During the marriage, I refinanced (morgtage in my name only) to get rid of the PMI. I was forced to QCD my husband on my title, but husband also signed a "ASSENT TO EXECUTION OF INSTRUMENTS" and "WAIVER OF MARITAL RIGHTS".

    The verbage in the waiver reads:
    (husband) do hereby expressly assent to any purchase, sale, conveyance of real estate, or to the execution of any deed of trust, mortgage, encumbrance or other instruments by my said spouse, and acknowledge and state that such purchase, sale conveyance, deed of trust, mortgage or encumbrance is not to be deemed in fraud of my marital rights, and I hereby give up, release and waive any such marital rights which I may have in the real estate situated …

    I have read in the postings that MO requires adding spouses name per Probate Code--Intestate Succession and Wills Section 474.150 every time there is a conveyance.

    Does the WAIVER he signed (recorded in deed office) really give the house back to me? What rights do I have to enforce this? Is this enforcable? I was told he needed to QCD back to me to remove him, but doesn't the Waiver have any effect? He refuses to cooperate (going through divorce).
    Thank you for your help!
  2. #2
    seniorjudge Guest
    "...Does the WAIVER he signed (recorded in deed office) really give the house back to me?..."
    No; waivers of marital rights are useless in Missouri. Here's a memo I wrote on your very question which answers all your questions:


    Subject: This memo deals exclusively with the situation where one spouse is in title to the real estate.

    General rule: In Missouri, a spouse may have an interest in the real estate held solely in the name of the other spouse. Both spouses must join in any conveyance, even if only one is in title.

    One spouse only on the deed: If only one spouse’s name is on the deed, then there are only 3 ways to get rid of this spousal interest (the 3-D rule):

    1. Death of one of the spouses -- The interest, if any, of the surviving spouse will be determined by the probate court;
    2. Divorce -- The interest of both spouses should be set out in the judgment of dissolution of marriage; or
    3. Deed by both of the spouses to a third person -- If both spouses join in the conveyance (e.g., general warranty deed, quit claim deed, deed of trust, etc.) then the interest of both spouses is accounted for.

    Example: A good way to think about this is to imagine a piece of real estate solely in the husband’s name which is being sold. On the way to the closing, the husband dies. Who will sign the deed? A spouse is always an heir so therefore now that person (the surviving spouse) owns that real estate with any other tenants, if any, on title. The wife may have had some interest in it before the husband died, but after he dies, she owns all of the husband’s interest, even though her name is not on the deed.

    Missouri law: Here is the statute covering this rule:

    Gifts in fraud of marital rights--presumptions on conveyances.
    RSMo 474.150, as currently supplemented
    ...

    2. Any conveyance of real estate made by a married person at any time without the joinder or other written express assent of his spouse, made at any time, duly acknowledged, is deemed to be in fraud of the marital rights of his spouse, if the spouse becomes a surviving spouse, unless the contrary is shown.

    ...
  3. #3
    HomeGuru is offline Senior Member
    Join Date
    May 2000
    Location
    Catatonic State
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    81,919
    Quote Originally Posted by Deja_vu2000
    What is the name of your state? Missouri
    I purchased a in my name only house prior to marriage. During the marriage, I refinanced (morgtage in my name only) to get rid of the PMI. I was forced to QCD my husband on my title, but husband also signed a "ASSENT TO EXECUTION OF INSTRUMENTS" and "WAIVER OF MARITAL RIGHTS".

    The verbage in the waiver reads:
    (husband) do hereby expressly assent to any purchase, sale, conveyance of real estate, or to the execution of any deed of trust, mortgage, encumbrance or other instruments by my said spouse, and acknowledge and state that such purchase, sale conveyance, deed of trust, mortgage or encumbrance is not to be deemed in fraud of my marital rights, and I hereby give up, release and waive any such marital rights which I may have in the real estate situated …

    I have read in the postings that MO requires adding spouses name per Probate Code--Intestate Succession and Wills Section 474.150 every time there is a conveyance.

    Does the WAIVER he signed (recorded in deed office) really give the house back to me? What rights do I have to enforce this? Is this enforcable? I was told he needed to QCD back to me to remove him, but doesn't the Waiver have any effect? He refuses to cooperate (going through divorce).
    Thank you for your help!
    **A: since he is on the deed, he has a claim to the property.

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