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  1. #11
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    Jan 2006
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    Default Re: Rights to a Separately Owned Marital Home After a Long-Term Marriage

    Quote Quoting budwad
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    It may well work to your father's advantage if there was a quid pro quo. You say that the wife has been planning a divorce for a while. Why did your father decide to execute the quit claim deed when he did? Could it have be an inducement for the wife to stay in the marriage?



    But a court can invalidate the deed if there was an inducement, or a fraud. There must be donative intent.
    Three years ago the deed was executed. That’s some long term planning for only a life estate. Sorry budwad but I think proving anything nefarious is way beyond realistic.

    As far as donative intent;

    a deed proves donative intent. Donative intent is more applicable when arguing loan versus gift.

  2. #12
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    Nov 2013
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    5,902

    Default Re: Rights to a Separately Owned Marital Home After a Long-Term Marriage

    Don't be so sure of yourself until you do some research into donative intent in Illinois case law as it relates to divorce and quit claim deeds. You may just be surprised.

    Here are three cases you may find interesting.

    https://scholar.google.com/scholar_c...en&as_sdt=4,14

    https://scholar.google.com/scholar_c...en&as_sdt=4,14

    https://scholar.google.com/scholar_c...en&as_sdt=4,14

    And there are others. You will of course have to read the cases and how the quit claim deeds were held invalid in the divorce proceedings because of no donative intent.

  3. #13
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    Default Re: Rights to a Separately Owned Marital Home After a Long-Term Marriage

    I’ll read the others as time allows but two very critical issues are present


    3 We hold that the facts in this case demonstrate those special equities which can be deemed sufficient to justify a transfer of interest from the sole titleholder to the other party having an equitable interest in the property. We do not attempt on this appeal to determine how much of an interest exists.

    applying that statement to the case at hand would show no need for a donative intent but that the wife has quite likely earned an equitable interest in the property.

    We slso have the issue (in the first case cited) that the quit claim was executed in anticipation of a divorce. As such I would see little problem with the deed being rescinded as it is likely it was executed as part of a negotiated division of assets.


    In the case at hand, the deed was not executed in anticipation of a divorce and there has been no fee interest transferre. The donative intent is self proving.

  4. #14
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    Default Re: Rights to a Separately Owned Marital Home After a Long-Term Marriage

    Quote Quoting jk
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    In the case at hand, the deed was not executed in anticipation of a divorce and there has been no fee interest transferre. The donative intent is self proving. [/FONT]
    You are quoting dicta not the case law.

    You don't know any more than I about the circumstances of this post. The fact that the quit claim deed was executed three years ago means nothing. The donative intent is not self-proving just because a deed was granted. That is what the case law says. It will be the facts of the case that will determine if the deed is to be upheld.

    The point to be made is that the deed is not forever as you say. I gave you 3 cases where it was held invalid in a divorce proceeding.

  5. #15
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    Jan 2006
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    Default Re: Rights to a Separately Owned Marital Home After a Long-Term Marriage

    Of course I don’t budwad. We have what we have and that’s it.

    What we do have is the creation of a deed with no claim it was anything other than a husband providing for his wife’s accomodationsn once he passes.

    We have no suggesrion she had this long drawn out scheme to steal a life estate from him in the home they currently share and have done so for a considerable amount of time. Seriously, why a life estate? Why not half of the interest, or all of it upon his death (jtwros)?

    I suggest you might be a bit too skeptical and cynical without anything to support, or even suggest, the wife had ill intent in accepting the deed.


    As to a deed being forever;

    Of course that was a bit loose. Some deeds are deemed invalid but when a grantor creates a deed with no surrounding issues, they are forever. You don’t get to just rescind a deed because you changed your mind and that is what the op is asking about.

    I will stand by my statement that the creation of a deed proves donative intent. The onus to prove otherwise would be upon the grantor. In other words; donative intent is inherent in the intentional creation of a deed transferring interest. If there are surrounding issues (such as the issue where the deed was created in anticipation of a divorce), the grantor has to prove it.

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