Any time you leave the finer details of your life to the government, there's a chance things won't turn out the way you hoped. What happens to your house when you die depends a great deal on whether you leave a will, and when you bought or acquired the house.
If you die without a will, the law tries to do what most people would have wanted if they'd gotten around to writing one. These laws are called "intestate succession" laws, and all states have some version of them, listing the relatives who stand in line to take your property if you don't make your wishes known by leaving a will. These laws assume that you'd want your spouse to have most – if not all – of your earthly possessions, so the first person on this list is invariably the spouse. Depending on when you acquired the house, if it's your sole property and if you die without a will, he's probably going to inherit it, particularly if you don't have any children yet.
The laws in many states include another wrinkle that might give your house to your husband even if you do leave a will. Your will typically overrides intestate succession law, but it probably doesn't override the law if you're so miffed at your husband that you try to disinherit him. Georgia is the only state that allows you to disinherit a spouse. All other states are either community property states or they have something called "elective share" laws. These laws provide that if your husband doesn't like what you left him in your will, he can make a claim to the court – usually within about eight months – to take a statutory share of your estate instead. Depending on whether you have children, this might be up to half of everything you own, and it might include your house.
As a practical matter, if you and your husband bought your house together while you were married, it will probably pass directly to him when you die regardless of intestacy and elective share laws. If you own your house together, you and your husband probably hold title as joint tenants or – in states that recognize this type of ownership – as tenants by the entirety. Both forms of ownership carry rights of survivorship. This means that if you die, your share of the property automatically passes to your husband without probate and without the court getting involved. Intestacy and elective share laws would probably only come into play if your house is your separate property – you bought it before you got married, or you received it as a gift or as an inheritance.
Community Property States
If you happen to live in one of the nine community property states – Wisconsin, Texas, Nevada, Idaho, Arizona, California, Louisiana, New Mexico or Washington – your house has a little more protection in the event of your death. If it's your separate property, it would typically only go to your husband if almost no other relatives survive you, such as your children, your parents or your siblings. If your house is marital property, community property law treats this as equally owned by both you and your husband, no matter whose name is on the deed. In community property states, when one spouse dies, the survivor typically keeps his half of all the community property automatically. You don't have the right to will or bequeath his share to anyone else.
- National Paralegal College: Intestate Succession Rules
- Official California Legislative Information: Probate Code Section 6400-6414
- JD Supra Law News: It Takes Work to Disinherit a Spouse
- Law Offices of Edward J. Danhires: Forms of Property Ownership in New Jersey
- Bedrock Divorce Advisors: The Difference Between Separate and Marital Property
- The Zucker Law Firm: State Law Differences Regarding Spousal Inheritances
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