Legally Speaking: Can one spouse transfer property that is jointly owned?

Legally Speaking: Can one spouse transfer property that is jointly owned?

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My husband Joe and I own our house jointly. In addition to our joint checking account, Joe has a savings account with a balance of about $100,000. Joe suffers from advanced dementia and his health is failing. I do not know how much longer he will be able to live at home with me. I anticipate needing to apply for Medicaid down the road. I understand that Joe is more likely to be eligible for Medicaid if his assets are transferred to me. 

THE QUESTION: As his spouse, can I simply transfer Joe’s assets into my name?

THE ANSWER: Unfortunately, you do not have the authority to transfer Joe’s assets to yourself unless Joe has a power of attorney in which he names you as his agent and gives you authority to make gifts to yourself. Without the benefit of a power of attorney that includes a statutory gifts rider, you have no more authority to transfer Joe’s assets to yourself than a stranger would have.

Even though you and Joe own your home jointly, both you and Joe would need to sign a deed to transfer the property to you alone. If Joe’s dementia is advanced, there is a chance that he lacks the capacity to sign a deed. To find out if that is the case, you and Joe should talk to an experienced estate planning attorney. After speaking to Joe, the attorney should be able to tell you whether Joe has the requisite capacity to sign a deed. 

If the determination is that Joe lacks capacity, the only other option you have to transfer the property is to be appointed as Joe’s guardian in the context of a costly and time-consuming guardianship proceeding. 

Just as Joe’s interest in your house cannot be transferred to you without Joe taking action, the funds in his savings account cannot be removed without Joe’s active participation. Unless you are Joe’s agent pursuant to a valid, enforceable power of attorney or his legal guardian, Joe’s signature will be needed to close the account.

Fortunately, that is not the case when it comes to your joint account. You need not be Joe’s agent or his guardian to transfer the funds in the joint bank account to yourself. That is because joint account holders each have an ownership interest in the funds in a joint account. As such, any joint owner can either close that account or reduce the balance in the account to a negligible amount. If you close that account and put the funds in your name, the transfer will not be deemed a gift and the funds will be deemed not available to Joe in the context of his Medicaid application. 

Even if it is too late for Joe to sign a power of attorney giving you authority to handle his affairs and make gifts to yourself, it is not too late for you to delegate authority to an agent of your choice to handle your affairs down the road. To ensure that any power of attorney you sign is tailored to your needs, I urge you to retain an attorney who practices in the area of estate planning to explain in detail the current power of attorney and the various types of transaction and activities you may want to delegate, and to prepare for you a new power of attorney that reflects your wishes. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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