The Inchoate Real Martial Interest

In three separate divorce consultations I had last week the exact same question arose, so I decided to write a short blog post about the question.  When I was in law school, I was research assistant to a brilliant Harvard Law School trained professor named Kenneth Gray.  Gray's specialty is property law and I assisted him writing books and articles about complex property law issues.  As such, I happen to have a unique background in property law.

Modern property law derives from common law England.  A common concept in common law is the real interest known as "dowery" or "curtsey."  In modern property law these concepts translate to mean that when you get married your spouse gains an "inchoate" or invisible interest in any real estate you own.  Therefore, if you separate, and even later divorce, that interest is not automatically extinguished.   The problem is the previous spouse's interest will cloud the real estate's title, meaning you cannot then sell the real estate with clean title thereafter.

As such, it is critical that the previous spouse execute what is called a "Quitclaim Deed" conveying their inchoate rights back to you with specifical language to clear the cloud on the title.  Unfortunately, this step in the process makes it difficult to effectuate a divorce without an experienced divorce attorney.   If you are considering divorce and you own real estate, please contact us.