Widow questions if conditional quitclaim deed is valid

If the quitclaim deed is valid, will she get anything? There was no will. There are four adult children from his prior marriages. I’m trying to help her understand her options.

A: We’re sorry for your friend’s loss. Your friend must have had a pretty bumpy relationship with her husband to quitclaim her home to him while they were still married. That sort of action flies in the face of conventional wisdom and financial management.

So, your friend gave the deed to her husband. Do you know if he recorded the deed or simply held onto it? If it didn’t get recorded, it wouldn’t be valid. It also appears that the deed was given conditionally, subject to a divorce. Since he died before they got divorced, the deed may no longer be needed and would not get recorded now.

Given the limited information you sent us, it’s possible the home is still in your friend’s name. If so, she still owns the home. For the house to have passed to her now-dead husband, several steps would have had to be taken. First, your friend would have to have given the deed to him without conditions. He, in turn, should have taken that deed to the recorder of deeds office or the office that handles the filing of real estate documents for recording or filing.

More Matters: Advice for longtime house hunters who can’t pull the trigger on a purchase

If he had done that while he was living, the ownership of the home would have been transferred from your friend to her husband. If these steps didn’t transpire, it’s likely she is still the homeowner.

Now, let’s assume he recorded the deed and officially took ownership of the home. The situation is different, but your friend isn’t out of luck. You mentioned that he died without a will. Most states protect the surviving spouse. This would probably mean that your friend could still end up owning at least some of the home.

Many states provide that the surviving spouse gets one-half of the assets of the deceased spouse. So, your friend would wind up owning half the house with her husband’s four kids sharing the other half.

From your question and facts, your friend either owns the property entirely or is likely to end up owning one-half of the property along with her husband’s children.

But your question poses an interesting situation: the conditional use of the quitclaim deed.

When your friend gave the deed to her husband, she gave it to him to use in case of a divorce. We suspect there is nothing in writing to show that, but she may have an email or text message to prove it. However, the fact that he didn’t record or file the deed (we’re assuming) makes the deed suspect. With his death, the deed would no longer be used or recorded as the transfer of the property to him should have taken place during his lifetime.

More Matters: What home documents you need to scan now in case your property is destroyed in the future

In real estate, you don’t want to transfer title to a person who is no longer living. Dead people are not in a position to receive the property, take title to the property, use the property or hold title to the property. You can have title to a home flow from a seller to a buyer only to have the buyer die before the deed gets recorded. If the buyer of the home freely accepts the deed at the time of the purchase, the deed would not be invalidated due to the death of the buyer shortly after the closing.

Your case deals with a quitclaim deed where the husband did not pay money for the transfer, there is a claim that the deed was given conditionally, and the deed was never recorded during the husband’s lifetime. If third parties (the dead husband’s four children) wanted to claim that the ownership was in the husband’s name, they might have to prove not only the delivery of the deed to the husband but that the husband intended to receive ownership of the home. Without the recording or filing of the deed during the husband’s lifetime, the husband’s intentions are ambiguous, and we suspect that the deed may no longer be valid.

Simply stated, if your friend has the deed, her possession of the deed may be sufficient to show that the husband did not intend on accepting ownership.

We’d suggest you find the deed and then consult with an attorney in your area.

Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (Fourth Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, bestmoneymoves.com.