The friend and the girlfriend agreed when they split that she would quitclaim her interest in the house to the friend, in exchange for the amount she contributed to the home. She signed a document conveying her ownership in the home to the friend, released her interest in the property and agreed not to claim any future right to the property, as described in the article “Cautionary tale involving claims on deceased owner’s home illustrates importance of estate planning” from The Washington Post.
When the friend died, it was learned that he had never changed his will and the ex-girlfriend now wants the house. This is a textbook example of why it is so important to review and update estate plans regularly in general and especially when a major life change occurs, like a breakup for divorce.
An estate plan typically includes a will, a living will, powers of attorney for financial matters, powers of attorney for healthcare and if appropriate, trusts. All of these documents need to be kept up to date to avoid this kind of nightmare situation.
The will is used to direct what happens to a person’s assets at the time the document was finalized. The will is the “last word” in what that person wanted to happen. Creating a legally binding will takes some time and requires a number of steps. It starts with an estate planning attorney creating the will, discussing the person’s wishes, getting details on what the person owns and then going through a series of legal procedures.
The will must be signed before a notary and witnesses, with the number of witnesses varying by state. In some cases, each page of the will must be initialed, and the last page of the will gets a notary’s stamp and the signature of the witnesses. The purpose is to make sure the document truly reflects the person’s wishes and to ensure that the person who signs it is of sound mind—that is, they have legal capacity to determine their wishes and sign the document.
The seriousness of the will is why it prevails over almost everything (except for beneficiary designations). When couples divorce and neglect to change their wills, depending on state law, the will may supersede their divorce agreement, and an ex-spouse could end up with everything.
In this case, the ex-girlfriend signed a document giving up her claim to the home, but the court cannot tell from that document whether the friend truly wished her not to get the house. There’s no way to know if he intentionally did not change his will, or if he just forgot. The will is the final word, and it is likely the ex-girlfriend has a legal right to the home.
There are some wrinkles: if the friend put his children on the title as joint tenants with rights of survivorship, the court will have to consider this in making a decision. It’s not usually recommended to do this but if this step were taken, it would give the court another factor to consider.
Reference: The Washington Post (Nov. 23, 2020) “Cautionary tale involving claims on deceased owner’s home illustrates importance of estate planning”
Suggested Key Terms: Will, A Living Will, Powers Of Attorney, Estate Planning Attorney, Joint Tenants, Quitclaim, Notary, Witnesses, Trusts, Ex-Spouse, Family Home