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Who Gets the House When a Spouse Dies?

by | Oct 31, 2020 | Finance, Life

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The death of a spouse is a terrible event to go through and dealing with the deceased spouse’s affairs can be an equal nightmare. Survivorship or inheritance of the home is a concern for most people and it should not be taken lightly.

Generally, a spouse inherits property of the deceased spouse with a will or property ownership rights. However, many people falsely believe that when a spouse dies, the other spouse will automatically receive all of the assets. 

In some scenarios, this is not the case and can result in an unintentional mis-inheritance for a surviving spouse. Below are some ways to ensure that a surviving spouse receives a house upon the death of another one.

Have a will

A will is a legal document that sets forth wishes with regards to how property gets distributed to heirs. If there is a will, and the surviving spouse is listed as the person who inherits the house, then he or she will get the house.

Why you should have a will

Having a will is not limited to people who are very wealthy or have a lot of assets to divide among family. There are quite a few good reasons to have a will. Here are a handful:

  • A person can be clear about who gets assets
  • Keep assets out of the hands of certain people that you wish to not be included for whatever reasons
  • Identify who should care for children
  • Heirs will have less headaches when it comes time to get access to assets
  • Plan to save money on taxes by giving some money to charitable organizations

Community property vs. separate property

In a community property state, each spouse owns half of the property that was accumulated during the marriage. This does not include property that was acquired before the marriage which is separate property. Likewise, debts that were incurred during the marriage are owned together. Upon the death of the spouse, his or her half of the community property goes to the surviving spouse unless a will directs it elsewhere.

In a non-community property state, a spouse is not automatically entitled to half of the interest of all property. Rather, ownership is determined by whose name appears on the title or through elective sharing where a spouse has the right to claim a portion of the estate, regardless of who is on the will.

Property ownership rights

When a spouse dies, who gets the house is largely dependent on the property ownership rights on the title. 

For example, if a person bought a home before a marriage and did not have the spouse on the title, then it can get tricky for the surviving spouse. It can get even trickier if there isn’t a will and therefore applicable state laws would need to be applied to the situation.

The best way to avoid this situation, regardless of being husband and wife or not, is to perform the following steps: 

  1. File a quit claim deed – this is a legal instrument used to transfer the rights of property from one person to another.
  2. Add your spouse to the title – With the quitclaim deed, a person can name another person as joint owner of the home
  3. Joint tenancy with the right of survivorship – It’s important to ensure that the quit claim deed includes joint tenancy with right of survivorship because that will make certain the person listed as joint owner gets the property upon death.

In this arrangement, the couple have an equal right to the property and are afforded survivorship rights if the spouse dies. 

Additionally, this arrangement helps avoid probate court if no will was available which is timely and often emotional during these times. Joint tenancy with right of survivorship automatically transfers ownership to the surviving spouse causing them to become the sole owner and avoids probate court.

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Hire a lawyer

Legal advice should come from a lawyer working at a reputable estate planning law firm. It’s important to take the information gathered from the internet and use it as a starting point in building a knowledge base. Topics like this are extremely important to take seriously which is why taking information from this blog to an expert is important.

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The information contained in this blog is for general information purposes only, and while believed to be accurate, Trelora assumes no legal responsibility for accuracy. Information provided within should not relied upon as legal advice. Please consult with your local advisors for independent information regarding availability and applicability in your market.