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Protecting Spousal Rights in Real Estate

New Jersey has always protected to some extent the rights of a married person in and to New Jersey real estate owned by his/her spouse. Prior to May 28, 1980, protection was provided by means of an interest in the real estate called dower for the wife and curtesy (and not courtesy) for the husband. Effective May 28, 1980, the Legislature created an elective share for a spouse to share in the estate of a decedent spouse and a right of joint possession in the principal marital residence.

Dower and curtesy were abolished by the New Jersey Legislature as of May 28, 1980. (N.J.S.A. 3B:28-2). In New Jersey, the statutory rights of dower and curtesy gave the non-owning spouse a right to a life estate in one-half of the real property owned by the other spouse at the time of that spouse’s death. N.J.S.A. 3B:28-1. Dower and curtesy interests were created upon the acquisition of the property by a spouse in that spouse’s name only - or upon the date of the marriage between the two spouses, whichever date was later - until May 28, 1980. Property acquired on or after May 28, 1980 is not subject to dower or curtesy, nor is property acquired before that date by an unmarried person who later married on or after May 28, 1980.

In the situations where dower and curtesy interests still exist, the non-owning spouse must sign the deed conveying the property for the owning spouse to be able to convey clear title to a purchaser. For that reason a purchaser will want the non-owning spouse the sign the contract of sale along with the owning spouse. It is immaterial whether the real estate which is subject to a dower or curtesy interest is the marital residence or not.

In part to eliminate the ability of a decedent to disinherit his/her surviving spouse, the Legislature reformed our probate laws and created a right for the surviving spouse to seek an elective share of the decedent’s estate under certain circumstances (which this article does not address). N.J.S.A. 3B:8-1 et seq. As part of the probate reform legislation effective May 28, 1980, dower and curtesy were abolished, but a right of “joint possession” in the principal marital residence was created. N.J.S.A. 3B:28-3. This right provides that every married person shall be entitled to joint possession with his or her spouse during the marriage of real property occupied by them jointly as their principal residence if acquired by only one spouse on or after May 28, 1980. The effect is that title to property acquired on or after May 28, 1980 and occupied by spouses as a principal marital residence cannot be transferred without the consent of both spouses. All other real property owned by either spouse which is not the principal marital residence may be transferred without the consent of both spouses.

While there still remain instances where dower and curtesy may still exist, the protection provided to spouses since May 28, 1980 is now by means of the “right of joint possession.”

Full post as published by New Jersey Law Blog on May 15, 2008 (boomark / email).