If I have 2 homes purchased before my second marriage, are they now considered community property in death or divorce?

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If I have 2 homes purchased before my second marriage, are they now considered community property in death or divorce?

Main home is in CT; summer home NH.

Asked on October 7, 2011 under Real Estate Law, New York

Answers:

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

Answered 9 years ago | Contributor

First of all, NY is an "equitable distribution" state, not a community property state. That having been said, as a general rule, in a divorce property owned before marriage is considered to be separate property. That having been said, separate property can be "transmuted" into marital property under certain conditions. For example, if your spouse's income was used for extensive repairs and improvements(although this may just entitle them to reimbursement and certain of the property's appreciation).

As for ownership in the event of your death, your spouse will be entitled to some share of your assets. If you die without a Will, your spouse will be entitled to their "intestate" share of your estate. In NY that is the first $50,000, plus 1/2 of your assets. If you leave a Will but exclude your spouse or leave them an amount less than their intestate share, they can ask for their "spousal elective share" of the estate. Depending on what other assets that you have this may or may not include your real property.

At this point, you really should consult with an estate planing attorney. There are ways to protect your assets. They can best advise how to do so in the event of death or divorce.


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