If the house that my spouse andI share is only inher name, who gets it if my spouse were to pass away?

I am married and the house we share is only in my spouse’s name. My spouse does not have a Will so I would like to know if my spouse were to pass away, would the house be left to me, my spouse’s biological children, all the children (biological and step-children)?

Asked on September 29, 2011 under Estate Planning, North Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If the house was in both of your names, you would be entitled to 100% ownership of the house upon your wife's passing by virtue of something known as "tenants by the entirety". However, this is not applicable because your name is not on the deed as a co-owner.

Since your spouse has no Will, her estate will pass via "intestate succession". Accordingly,  you will be entitled to 1/2 -1/3 of your spouse's estate (depending on how many biological/adopted children that she had; 1/2 for 1 child or 1/3 for more than 1 child). The remainder of her estate will pass to such children. Step-children will have no claim to the estate (unless they were adopted).

The fact is that your interests can be protected by adding your name to the title of the house or having your wife execute a Will. You should consult with an attorney in your area as to all of this.


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