Many people erroneously assume that when one spouse dies, the other spouse receives all of the remaining assets; this is often not true and frequently results in unintentional disinheritance of the surviving spouse.
In cases where a couple shares a home but only one spouse’s name is on it, the home will not automatically pass to the surviving pass, if his or her name is not on the title. Take, for example, a case of a husband and wife where the husband purchased a home prior to his marriage, and consequently only his name is on the title (although both parties resided there, and shared expenses, during the marriage). Should the husband pass away before his wife, the home will not automatically pass to her by “right of survivorship”. Instead, it will become part of his probate estate. This means that there will need to be a court probate case opened and an executor appointed. If the husband had a will, the executor would be the person he nominated in his will who would carry out the testator’s instructions regarding disposition of the assets. If he did not have a will, state statutes, known as intestacy laws, would provide who has priority to inherit the assets.
In our example, if the husband had a will then the house would pass to whomever is to receive his assets pursuant to that will. That may very well be his wife, even if her name is not on the title.
If he dies without a will, state laws will determine who is entitled to the home. Many states have rules that would provide only a portion of the estate to the surviving spouse. If the deceased person has children, even if children of the current marriage, local laws might grant a portion of the estate to those children. If this is a second marriage, children from the prior marriage may be entitled to more of the estate. If this is indeed the case, the surviving spouse may be forced to leave the home, even if she had contributed to home expenses during the course of the marriage.
Laws of inheritance are complex, and without proper planning, surviving loved ones may be subjected to unintended expense, delays and legal hardships. If you share a residence with a significant other or spouse, you should consult with an attorney to determine the best course of action after taking into account your unique personal situation and goals. There may be simple ways to ensure your wishes are carried out and avoid having to probate your partner’s estate at death.
Posted in: Estate Planning, Family Planning
FAQs
However, if there is no will and your spouse's name is not on the title of the deed to your home, intestate succession laws will determine who is entitled to the house. As such, the answer ultimately depends on whether or not you have living children, parents, or close relatives such as your siblings when you die.
What if my wife is not on the deed or mortgage? ›
What Happens If Your Spouse Is Not On the Mortgage. If your spouse is not on the mortgage, they are not responsible for paying it. However, the mortgage lender can foreclose on the house if the mortgage is not paid.
What if someone's name is on the deed but not the mortgage? ›
Name Not On Mortgage But On The Deed A person's name may appear on a deed without being on a mortgage. But, doing so entails ownership risks since the title has potential encumbrances and liens. Having a free and clear title means the owner is the only person with rights to the property.
Does joint ownership mean equal ownership? ›
If title to property is held in joint tenancy, it means two or more co-owners have an equal interest in the property. When a co-owner dies, the surviving co-owners automatically are transferred the deceased co-owner's share of the property.
Does the house automatically go to a wife if the husband dies? ›
California is a community property state, which means that following the death of a spouse, the surviving spouse will have entitlement to one-half of the community property (i.e., property that was acquired over the course of the marriage, regardless of which spouse acquired it).
What happens if I'm not on the mortgage and my husband dies? ›
If your surviving spouse isn't on the mortgage, federal law provides protections allowing them to assume the mortgage and keep the home. This is assuming they (and not someone else) inherit the property. The surviving spouse must also be able to afford the mortgage payments to assume the mortgage.
Is a spouse automatically a beneficiary? ›
If you're not married you can choose anyone to be your beneficiary. However, if you're married, or are planning to get married, please be aware that by law, your spouse is your default beneficiary, regardless of who you may have been your beneficiary before getting married.
What are the rights of a wife when the husband dies? ›
Upon losing her husband, a surviving wife's inheritance will be determined based on a combination of state law, the husband's last will and testament, any pre-marital or post-marital agreements, title to property, and beneficiaries listed on any investment accounts, retirement accounts, and insurance policies.
What happens if my partner dies and we aren't married? ›
Unlike with married couples, when one unmarried partner passes, the living partner does not receive any automatic legal right to their deceased partner's property or assets. In this case, with no will, the assets will likely be passed to the deceased partner's family, and their estate is left in the hands of state law.
Am I entitled to my husband's property if he dies and my name isn't on the deed in Florida? ›
In Florida, a surviving spouse has the rights to the deceased's spouse's property regardless of whether or not there is a valid will for the deceased saying so.
