Only My Name Is on the Deed. Will My Spouse Inherit It?

If you share a home, you might figure your marriage means the home deed will belong to your spouse when you pass away. And if you own the home jointly with survivorship rights, then yes, your home will go to the surviving spouse whenever one of you passes on.

But not all spouses vest their homeownership jointly on their deeds. Marriage does not automatically entitle people to their partners’ assets.

Let’s look at what could happen if your deed is vested in your name alone.

The Role of Probate

If your name is the only one on the deed to your home, your surviving spouse does not automatically receive your ownership interest when you pass away. Even if you lived together for many years. Even if your spouse faithfully shared the work and costs.

In many states, a home that’s titled as sole property goes into the probate court, which will oversee the payoffs of debts, then distribute the late deed holder’s assets to the heirs. If the late homeowner wrote a will, and named an executor, that person will distribute assets under the court’s supervision. (The executor can be the surviving spouse, or someone else.)

If the home is willed to the surviving spouse, then the executor will re-deed the home according to that instruction. This is assuming the executor doesn’t need to liquidate the home’s value to pay off an estate’s debts.

But a deceased homeowner who never created a valid will is known to the court system as intestate. In such cases the deed goes through the state’s intestacy process.

What Happens If You Leave No Will?

Let’s imagine you pass away without a will in the state of New York. First off, under the New York intestacy law, your spouse would get the first $50,000. Then, the value of the rest of your estate would be divided among your spouse and children, if you have any. Otherwise, your assets will all go to your surviving spouse.

When a New York homeowner dies intestate, title to the deceased’s real estate automatically vests in the heirs. No administrative transfer is necessary. That said, heirs can record new deeds as public proof of ownership.

If there are children in addition to a surviving spouse, all become tenants in common as co-owners of the real estate. That means each new co-owner owns a share that they can independently pass to their own heirs.

Does this mean the spouse and the children all own the home together for the duration? Usually not. New York’s partition statute enables tenants in common to open a partition action in New York’s Supreme Court and force the sale of the real estate, and then divide the proceeds.

Other states have similar systems. With Pennsylvania’s intestacy laws, the succession of ownership for your home and other assets goes this way:

• A surviving spouse may inherit intestate real estate.

• If the late owner and surviving spouse have children, the surviving spouse may inherit the first $30,000 of intestate property, and a half of the balance, with the children inheriting the remainder.

As you can see, it’s essential to know what your home state law says about surviving heirs. Laws involving real estate and family matters are state-specific. Laws change from time to time. Be sure you have an attorney-client relationship with a lawyer who’s admitted to the Bar of your home state.

And it’s crucial to write a will, expressing your desires.

In some states, a sole homeowner can easily switch the title to a co-ownership upon marriage. Do it in California, for example, through the interspousal grant deed.

How to Create Survivorship Rights for a Spouse

Using a quitclaim deed is a simple way to transfer a real estate interest between spouses. Or they can use another type of deed, as advised by a legal professional. Specifying survivorship rights on the deed will make probate unnecessary after one spouse dies. Creating survivorship rights involves transferring a joint, full interest (not a share; not a half interest) into the two names.

Once the property is held jointly, either co-owner can expect to receive the home property when the other passes away. Joint ownership with survivorship rights overrules whatever the parties may have written down in their wills.

A signed and properly notarized quitclaim deed should be filed in the county recorder’s office, according to the office’s requirements.

What about same-sex couples? They may create survivorship rights if they so desire. Available in some states, the tenancy by the entirety vesting form comes with survivorship rights, while protecting each spouse from the other’s debts. This vesting form, too, can work for same-sex couples as well as heterosexual couples.

Community Property States: What’s Mine and What’s Yours Is Ours

Do you live in a community property state? In this minority of states, property acquired during marriage is all considered jointly held. This allows a spouse who’s unnamed on the deed to receive your real estate when you pass away, following your state’s laws.

Even in community property states, though, a home can still be reserved as sole property. If you got married when you already owned the home, or if you inherited the home, or someone gave you real estate as a gift, you can continue to keep it as sole and separate property.

If the owner of the separate property later wishes to make it into jointly held real estate, that’s possible too. A quitclaim deed can transfer the home from the solely named owner to both spouses. This transfer turns separate property into community property.

Another way to turn separate property into community property, if the home is in a community property state, is to simply treat your asset as jointly held by sharing housing costs, co-mingling accounts, and the like.

On the other hand, you can have an attorney draw up a legal agreement to state your intent to keep sole and separate real estate from becoming community (joint) property. Then, use a will to bequeath the real estate to a selected beneficiary.

A Few Reminders

Deeds.com does not offer legal, tax, or financial guidance. This column is simply a starting point for your own due diligence. Follow up with your legal or financial professional for advice suitable for your situation, and to understand the tax impacts of deed changes. Call the mortgage company (if any) in advance. When someone quitclaims a real estate interest to a spouse, a mortgage refinance may be needed.

And remember: If you aren’t on the deed, it’s not your real estate. To change this, a sole deed holder can draft a quitclaim deed, transferring the home to both spouses. That means both will share the risks, responsibilities, and benefits of holding a deed.