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FAMILY LAW 29: Quitclaim deed signed after prenuptial agreement prevails.

On February 8, 2006, appellee and the decedent entered into a prenuptial agreement. Of relevance for the issue on appeal,

¶ 3A(1)(e) provides: Husband’s Separate Property [upon divorce or his death] shall include the real property . . . described and listed on Exhibit A, whether the title of such real estate . . . remains solely in the name of the Husband or whether it is subsequently [to the execution of the prenuptial agreement is] owned by Husband and Wife as tenants by the entireties or as joint tenants with the right of survivorship.

And ¶ 3H states: Notwithstanding anything to the contrary herein, with respect to the real property owned by Husband . . . , all which [is] described and listed on Exhibit A, in the event the Parties, subsequent to this Agreement own the real property . . . as Husband and Wife, whether as tenants by the entireties or as joint tenants with the right of survivorship, . . . in the event of death or divorce, such real property shall be treated as Husband’s Separate Property, as if title in the real estate was solely in the name of Husband, and shall be treated as Husband’s Separate Property in accordance with the terms of Section 3(A) through (G), above, in complete disregard in the method of ownership of the real property.

Further, ¶ 15 provides: No limitation on Inter Vivos Transfers. Nothing in this Agreement shall affect or diminish the right of either Party voluntarily to transfer real or personal property to the other Party, or the right to receive property so transferred by the other Party, during the lifetime of the Parties. Any such transfer, to be effective, must make reference to this Agreement and be acknowledged by both Parties in writing that the transfer is a voluntary transfer in which the provisions of this Agreement as to Separate Property has [sic] no force and effect and that the intent of the Parties is to hold the property as tenants by the entireties or solely by the grantee.

In April 2006, after appellee and the decedent married, the decedent executed a quit claim deed of the real estate at issue and conveyed the property to both himself and appellee as tenants by the entireties. Notably, the deed did not contain an acknowledgement, as contemplated in ¶ 15 of the prenuptial agreement, that the transfer was to be exempt from the various separate property provisions of the agreement.

After the decedent died in December 2016, appellee moved for summary disposition and contended that the property was hers and hers alone due the tenancy by the entireties she and the decedent had in the property

Appellant, however, argued that the prenuptial agreement made it clear that because the deed that purported to create the tenancy by the entireties did not contain the acknowledgement language of ¶ 15 of the agreement, the property was required to be treated as the decedent’s separate property—and therefore its disposition after the decedent’s death was subject to his will.

The trial court agreed with appellee and granted summary disposition in her favor.

In its written opinion, the trial court framed the issue as whether the deeding of the property as a tenancy by the entireties superseded the prenuptial agreement. The court ruled that title to the land prevails and that once the deed was signed, the property became the undivided whole interest for both the decedent and appellee and became appellee’s property upon the decedent’s death. Consequently, the court concluded that the prenuptial agreement did not have any impact on the property rights of appellee in this case.

If you are entering into a second marriage, and you have children from a previous marriage, you may want a prenuptial agreement to protect your wishes and the needs of your children. To schedule a free consultation with one of our attorneys, contact us today. From our main office in Plymouth, we serve clients throughout southeast Michigan.

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