Who gets the house with both names on deed but onlyone nameon the loan?

Originally my now girlfriend and her ex-husband owned a home and both were on the deed. After the divorce, it was put into her name only. When we became boyfriend and girlfriend and decided to live together, the house needed to be refinanced because of other debt. She had no verifiable income for over 20 years so we technically “sold” the house to me as a means of refinancing it. We then filed a quitclaim and put her name back on the deed with mine. Since her name is on the deed but not on the loan, would she be entitled to 50% of the house if we separated? And if one of us passes, will the other get 100%?

Asked on March 12, 2011 under Real Estate Law, Oklahoma

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, a deed controls ownership of real property, not a mortgage.  Therefore, as long as your girlfriend's name is on the title she will have ownership rights.  Just what those rights are however will depend on several factors.  If you separate, absent any other written agreement to the contrary, she will in all likelihood be entitled to 1/2 of the property.  Also, even if she is awarded 50% of the house, she or you may be entitled to additional amounts for reimbursement - e.g. who made the mortgage payments, who paid for or physically made improvements to the property, etc.  As for ownership rights in the event either 1 of you dies, just how much the survivor will be entitled to depends on just how title is held.  Does the deed read, "Joint tenants with rights of suvivorship" (JTWROS) or "Tenants in common" (TIC)?  If it's JTWROS, then the surviving owner automatically inherits the other co-owner's share (no Will or other document is necessary).  If title reads TIC, then the deceased owner's share will pass as per the terms of their Will or, in there is no Will, according to state intestacy laws.  In other words, the surviving owner may or may not inherit the deceased owner's share in such a case.


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