Are my kids entitled to proceeds from their father’s house after his death even if he was married at the time of his death?

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Are my kids entitled to proceeds from their father’s house after his death even if he was married at the time of his death?

My ex-husband was in the middle
of divorcing his second wife
when he died in April. His will
left everything, including his
home that his wife never lived
in, to his 2 kids. Her name was
on the deed at the time of his
death. She recently sold his
house for a large profit. Are
my kids entitled to any of
those proceeds?

Asked on July 3, 2019 under Real Estate Law, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

If her name was on the deed as a "joint tenant with right of survivorship," the home instantly and automatically became 100% hers when he passed away, since she was the surviving "joint tenant." It would not have gone through probate and therefore the will is irrelevant, since it is not an estate asset; your children will not inherit anything from it
If her name was on the deed as the other way two people could own a home, as "tenants in common," then his children will inherit his 50% ownership and she will keep her 50% ownership. If they and she, in this case, cannot voluntarily work matters out (e.g. she buys them out), they could bring a legal action called an action "for partition" to force the sale of the home and distribution to the owners of the proceeds (she would get 50%; each child would get 25%). 
So the critical issue is, how did your ex and his new wife own the home? As joint tenants or tenants in common?


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