How can property go to a spouse after death?
Brother gave his sister the deed and never put his wife on title to their home.
Q: Our local newspaper printed one of your articles, “Joint Property Co-Owner Dies Without Will.” My brother recently passed away. He was married but never made the effort to put his wife on the title to their home. They were married for over 20 years. He gave me the deed and I want her to have the house. She worked to pay the taxes and she is currently paying the home equity loan. I know we need a lawyer to take it to probate court. How can property go to a spouse after death?
Is a spouse automatically a beneficiary?
A: Please accept our condolences. As you can now see, a little planning can go a long way to avoid expensive court costs and anxiety for family members.
Your brother should have put his wife on the title of their home years ago. Had she been on the title to the home, upon his death she would have become the sole owner of the property. She wouldn’t have to worry about probate or other people potentially having an ownership right to the home she treats as her own.
What does a wife inherit when her husband dies?
Unfortunately, many people make the mistake of delaying or never taking the steps necessary to put together a basic estate plan. This might include a will, a living will, and a power of attorney for healthcare and another for financial matters. If you die “intestate,” without a will, the laws of the state in which a person lives kicks in.
How Can Property Go To A Spouse After Death?
All states have a legal process to take care of property owned by a resident who has passed away. Usually, state law favors a spouse, then children, then more distant relatives after that. When one spouse owns the marital residence only in their name, most states give the surviving spouse a partial claim to that residence.
In your situation, your brother had no will and the home was only in his name. Most states will recognize the spouse’s interest in that property and many of them will give one-half of the property to the surviving spouse.
Am I entitled to my husband’s property if he dies and my name isn’t on the deed?
It’s interesting that your brother gave you the deed to his property. We have some questions:
- Did he sign and give you the deed transferring ownership of the home to you before he died?
- What was his intent in giving you the deed?
- Did he want you to have the property or take care of his spouse?
- If your brother had a will and listed you as the person to inherit the home, that would be one indication of intent.
- You seem to indicate that he signed a deed giving you the home while he was alive. If so, did you ever record that document?
- Or, did your brother execute a transfer on death (TOD) instrument that gave you the home upon his death? It would be helpful to know the method of transfer and the specifics of the document.
How to make sure the wife gets the property
We understand that you want the home to go to your brother’s wife. There are three options:
- If your brother signed a deed to you while he was living, you might simply be able to shred the document. That would be an act of rejection of his gift of the home to you.
- Likewise, if he signed a transfer on death deed to you, you can elect not to accept the transfer.
- Many people don’t realize that even if someone lists you as an heir, you can reject the inheritance. So, if your brother had written a valid will and listed you as the person to inherit the home, you could reject the bequest from your brother and elect not to accept the home.
If you or your spouse dies intestate, state law determines who inherits the house
In these situations, the home would no longer be yours, but would pass according to the laws of the state in which the home is located. Be aware that what the law requires in your brother’s state of residence may not match your intended result of having the home end up with your brother’s wife.
Some portion of the home could wind up with his spouse but a portion of the home could also wind up in the name of his children and other siblings. You should sit down with a probate attorney to figure out your best course of action. It’s possible the attorney will recommend that you inherit your share of the home and subsequently transfer it to your sister-in-law. (There shouldn’t be any taxes to pay with the transfer, but the attorney can help you figure that out as well.)
Inheritances can be tricky, and a lot depends on who else might be considered an heir or odd circumstances. These could include children, a former spouse, the manner in which he owned the property and in which you think he deeded you the home.
Read more about inheriting property: