[WSBARP] Lien v Deed of Trust

[Stromberg, Spencer]

The option that comes to mind for me is a postnuptial agreement between
child and spouse. Lock in the separate property nature and amount. No need
to encumber title. I've previously done a similar agreement regarding down
payment money in a prenup. We set it up so the gift-recipient child got the
first $x in repayment of the down payment dollars (fixed amount) and then
the couple split any remaining equity according to applicable law (the
wedding was going to be "in the future" so we didn't try to lock in the
characterization of the excess equity).

The main problem with this approach is that the child can unwind it without
the parents' consent by voiding the postnup.

*Spencer A. W. Stromberg*
Attorney at Law


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On Fri, Jun 9, 2023 at 1:56 PM Mark Anderson <marka at mbaesq.com> wrote:

> Potential client wants to provide money to PC’s child out of a Trust so
> that child can purchase a new home with child’s spouse.  Home will be
> financed by money from child and child’s spouse, the money from the Trust,
> and a first position loan from lender to child and child’s spouse.  PC
> wants to make sure child’s spouse will not receive any of the equity
> represented by the money from the Trust in the event the marriage goes
> south.
>
> I have recommended they use a note in favor of the Trust with a second
> position deed of trust and a subordination agreement (if the primary lender
> needs one).  Offering that could, however, jeopardize the couple’s ability
> to get a primary loan unless the terms are exceptionally favorable as far
> as monthly payments (if any at all) so as to not impact the couple’s
> financial picture.
>
> PC asked about just having child and spouse consent to recording a lien on
> the new home, but I’m having trouble finding any sort of statutory basis
> for using a lien as opposed to a note any deed of trust.
>
> Apart from these possible solutions, do you of you have other ideas I
> could offer PC?
>
> Thanks.
>
>
> *Mark B. Anderson *ANDERSON LAW FIRM PLLC
> 821 Dock St  Ste 209  PMB 4-12
> Tacoma, Washington 98402
> +1 253-327-1750
> +1 253-327-1751 (fax)
> marka at mbaesq.com
> www.mbaesq.com
>
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