If my husband and I are buying a house and we put our son on the title, should we have him do a prenuptial agreement in case he gets divorced?

UPDATED: Oct 1, 2022

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If my husband and I are buying a house and we put our son on the title, should we have him do a prenuptial agreement in case he gets divorced?

My husband and I are on the loan for our house. Our son is on the title only with us. He is not on the loan. We did this incase anything happens to us we don’t have to worry about the state taking the house. We do have a Will but friends tell us having one is not enough. You also have to have a beneficiary on everything you own, cars, bank accounts, etc. Our son is getting married. Could we be forced to sell our house since he is on the title? I’m just trying to think ahead and protect our investment.

Asked on September 9, 2017 under Real Estate Law, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Being an owner or part owner means that has an interest (in this case, a 1/3 interest, as one of three owners) in the home. However, because he acquired his interest pre-marriage, the home should not be considered a marital asset: when there is a divorce, assets which were acquired during marriage, or which where paid for in part by the other spouse, are ones which may be divided in marriage; but assets which a spouse acquired pre-marriage, with no contributions from the other spouse, are separate property and should not be subject to division (e.g. being sold, and the proceeds divided) in divorce. Based on what you write, your house should be fine in the event of a divorce; that said, a pre-nuptual agreement would not be a bad idea to provide additional protection. The pre-nup can also acknowledge that in the event of the divorce, she will move out and has no right to even reside in the home, to help avoid a fight over getting an ex-wife out of your property.

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