Protecting Your Money in a Home Titled Only in Your Spouse's Name

Attorney Answer

You can protect your contribution, but not with the kind of agreement most people reach for — and the strongest protection is title, not a contract.

Start with what will not work. The Connecticut Premarital Agreement Act, Conn. Gen. Stat. §§ 46b-36a to 46b-36j, governs only premarital agreements, defined at § 46b-36b(1) as "an agreement between prospective spouses made in contemplation of marriage." You are already married, so the Act does not reach your situation at all. A married spouse who contributes purchase money but is not on the deed has to rely on ordinary contract principles governing postnuptial agreements, or on resulting and constructive trust doctrine. And a postnuptial agreement is not automatically enforceable simply because both spouses signed it — agreements between spouses are examined more closely than arm's-length business contracts, so a home-drafted document is a weak foundation for a house-sized contribution.

That is why title and recorded security beat a private agreement here. A recorded interest survives a dispute, a death, a later refinance, and a creditor. A signed piece of paper in a drawer often does not.

What you can do

1. Best option: take title jointly at the closing. Ask the closing attorney to prepare the deed in both names with survivorship. Being on the deed and being on the mortgage are separate questions, and a lender's requirements about the loan do not dictate who is named on the deed. 2. If she must hold title alone, document your money as a loan: a signed promissory note from her to you, secured by a mortgage in your favor, recorded on the town land records at the closing. Recording is what makes the interest good against later buyers and creditors. 3. If you prefer an agreement instead, have a written postnuptial agreement drafted with separate counsel for each of you, full written financial disclosure attached, signed and notarized. Understand that it will still be scrutinized if challenged. 4. Create a clean paper trail of your funds before the closing: which account, which date, the wire confirmation, and the funds shown as your contribution on the closing statement. 5. State in writing, at the time of transfer, that the money is not a gift. Silence is often read as a gift between spouses, and reconstructing intent years later is the whole fight. 6. Update your wills, beneficiary designations, and any trust at the same time, so the house does not pass in a way that contradicts what you just documented.