To Deed or Not to Deed? That is the Question.

By: Melissa L. Exline, Esq.

For married couples, an issue that arises often is this:  One party might have better credit, or, a property was purchased with help from family.  Later, a new loan is needed to get more favorable terms or remove the family members from title or the loan.  Thus, one spouse asks the other to sign a deed prepared by the title company, at the request of a lender, so that a new loan or refinance can be acquired.  If you sign a deed on a property giving your interest to another, spouse or otherwise – be prepared for the court to force you to honor the terms of the deed.  It will not matter if you did not intend to give away your interest.  Absent a clear contract signed by both parties spelling out the reasons for the deed, it will likely be considered a gift – period.

In Nevada, community property acquired during the marriage must be divided equally at divorce. However, when one spouse signs a deed granting, releasing or deeding away his or her interest to the other, then it creates a presumption under Nevada law that the grantor is gifting the property.  In order to overturn the presumption that the deeded property was a gift from one spouse to the other, one must show clear and convincing evidence a gift was not intended.  This is exceedingly difficult.

If you are ever approached with an request to sign a deed releasing your interest in real property – be aware – even if you don’t mean it, even if a gift was never discussed, you could be found to have given away all of your interest in that property.

Kimberly Surratt served for eight years on the executive council and has been the vice chair and then chair of the State Bar of Nevada Family Law Section. In addition, she is the President-Elect of the Nevada Justice Association and the chair of the domestic lobbying committee. She has lobbied with the Nevada Justice Association since 2004.

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