Am I entitled to everything when my name is on the mortgage but not on the deed if my husband dies?

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Am I entitled to everything when my name is on the mortgage but not on the deed if my husband dies?

Even though his Will stated that I will get everything. We are married for 15 years; no kids under 21. Am I entitled to half of his property/assets/pension retirement if we get divorced since I don’t work?

Asked on September 18, 2012 under Estate Planning, New York

Answers:

Mark Siegel / Law Office of Mark A. Siegel

Answered 8 years ago | Contributor

The answer to your question regarding ownership of real property upon the death of a spouse, would depend upon whether the real property was purchased during the marriage & was legally considered marital property. Spouses may own real property in their individual name before they are married & such property may be considered separate property, rather than marital property. If so, upon death, the deceased spouse's interest in the real property would pass into a deceased spouse's estate.

Under NY law, marital property is owned as "tenants by the entirety". Upon the death of a spouse, their interest passes to the surviving spouse by operation of law. This means that upon death, their interest in the real property passes to the surviving spouse, outside of the deceased spouse's estate. Your status as a borrower on the mortgage note only determines your legal obligation to repay the mortgage to the lender, it is not proof of, or otherwise determine, legal ownership of the real property.

If you subsequently obtain a divorce decree in court, then the ownership of any marital property converts from "tenants by the entirety" to "tenants in common". So if the ex-spouses continue to co-own the real property after the divorce decree is entered, upon the death of one of the ex-spouses, their one-half interest would become an asset of the deceased ex-spouse's estate. Their one half interest in the real property would be distributed under the terms of a will, or if there was no will at the time of death, then the ownership interest would be distributed to surviving relatives in accordance with the NY statute governing intestate distribution of property.

You should consult with a matrimonial attorney regarding your rights to other property in a divorce under NY law.     


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