Probate & Trust Law Section Conference Manual ... - Minnesota CLE

G. MARRIAGE AND DIVORCE
What happens to a TODD if the Grantor Owner marries after signing and
recording a TODD? What happens if the Grantor Owner divorces?
Failure of a spouse to join in a TODD that was executed by the Grantor
Owner before the parties’ marriage, whether recorded before or after the
marriage, will leave title subject to the new spouse’s marital or statutory
rights acquired by reason of the marriage.
No conveyance of a homestead after marriage is valid without the
signature of both spouses. A TODD that purports to transfer a homestead
that is not joined in by both spouses is void. See Section III.H. JOINDER
OF SPOUSE NOT IN TITLE, immediately below.
If a TODD is created naming a spouse as the beneficiary and the marriage
is subsequently ended by divorce or annulment, the divorce or annulment
will revoke the TODD.
Authority: Minn. Stat. §§ 507.071, Subd. 2; 507.02
H. JOINDER BY A SPOUSE NOT IN TITLE
Must a spouse who is not in title sign a TODD?
The definitions of “Grantor Owner” and “Owner” in the TODD statute
exclude a spouse who is joining in a TODD solely for the purpose of
conveying the spouse’s statutory or marital interests in the property.
Authority: Minn. Stat. § 507.071, Subd. 1, clauses (c) and (d),
respectively.
This leads to some confusion whether a spouse must join in a deed to
make it effective.
Except in certain circumstances, the signatures of both spouses are
required under Minn. Stat. § 507.02 to convey title to the homestead.
There is no way to establish of record that property is non-homestead
except by recording a Court order. As a consequence, if both spouses do
not sign a TODD, the TODD will be considered void unless a Court
determines that the property is non-homestead.
As a practical matter, both spouses must sign a TODD to avoid questions
whether it satisfies the requirements of Minn. Stat. § 507.02.
Authority: Minn. Stat. § 507.071, Subd. 2.
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