What happens to a quit claim deed when a spouse dies? It all depends on the type of deed transfer and their estate plans.

Q: What happens if you and your wife own a home through a quit claim deed and the spouse dies? We live in the State of Maine.

A: A quit claim deed transfers any interest that the seller owns in a property to the buyer, and it is one of a number of types of deeds the seller could use.

But the form of the deed that your seller used to transfer title to you doesn’t generally matter when it comes to how you own your property. The key is not the form but the language in the deed. You can have a warranty deed or quitclaim deed convey title to you as joint tenants or tenants in common or several other ways.

For purposes of discussion, we’ll focus on two of the most common ways to hold title: tenants in common and joint tenants with rights of survivorship.

If you take title to a home as tenants in common, you likely are equal owners of the property.  This would mean that you and your wife own each own a 50 percent interest in the home. If you die, your wife would only get what she’s entitled to by law or by what you’ve decreed will happen to your property in your will. If, on the other hand, you take title to the home as joint tenants with rights of survivorship, you both are equal owners of the home, but if either of you die, the other becomes the automatic owner of the whole property.

These rules generally hold true in the entire United States. If you have a copy of your quit claim deed, you can take a look and see if it says either of the following: “To have and to hold as joint tenants” or “grant and quitclaims as joint tenants.” If the deed has this type of language, you and your wife owned the home as joint tenants with rights of survivorship. That would mean that upon the passing of your wife, you became the sole owner of the home.

If you own a home as joint tenants, even if she had a will stating that something else should happen to her half of the property, the way you own title to the home will override other legal documents. So, if you own as joint tenants, you automatically get full title to the home upon the death of the co-owner.

On the other hand, if you own title as tenants in common, your deed may have language that reads as follows: “to have and to hold as tenants in common,” “to have and to hold Husband as to a 50 percent interest and Wife as to a 50 percent interest,” or if the deed simply says “grant and quitclaims to husband and wife,” you and your wife would each own equal shares in the home. Upon the death of either of you, probate court would look to a will to see who would receive the decedent’s interest in the home. But the surviving spouse would not automatically wind up with the ownership of the entire home.

Let’s say your wife has a will and deeds her interest in the home to your kids. As her husband, you might be entitled to half of her half interest in the home (or, one-quarter) and your kids would get her other half interest in the home. There can be a number of different permutations on how her half interest in the home might get divided, but at the end of the day, you might end up owning your half interest plus some additional share of the home, but not all of it.

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