Contract Options Available When One Spouse Dies Before Completing a Home Sale

UPDATED: Jul 12, 2023Fact Checked

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Jeffrey Johnson

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 12, 2023

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UPDATED: Jul 12, 2023Fact Checked

Contracts are enforceable against ALL the parties who sign them. Usually when one party breaches a contract, the other party’s compensation or recourse is monetary damages; that is, to be paid a sum of money equivalent to the loss they suffered from the breach. Sometimes the courts will order what’s called “specific performance;” which means the breaching party will be ordered to honor the contract and perform whatever is required under the contract.

Real estate is one of the cases where specific performance may be granted, since there is a presumption that real estate is unique and that receiving monetary compensation may not be an adequate substitute. If both members of the couple signed the contract then the contract would still be enforceable against the survivor, even after his or her spouse passed away. In most cases, the house would pass to the survivor without having to go through probate, since real estate is normally owned by married couples as a joint tenancy with right of survivorship. That means that when one passes, by law, the other instantly gets the home. Since the survivor would own the home, he or she would have the power to convey or sell it. If that person also signed the home sale contract, he or she would be contractually bound to go through with the sale. It would probably be reasonable and appropriate to allow the survivor some extra time to put affairs in order, but the contract is enforceable.

If only one member of the couple actually signed the contract, then it’s not clear that it could be enforced against the survivor. Contracts are only enforceable against those who are parties or signatories to them. If the survivor wasn’t a party to the contract, it may not be enforceable.

Furthermore, if the real estate was owned by the deceased spouse individually, rather than by the two spouses jointly, then the survivor is not automatically entitled to it by law. Instead, he or she would have to wait until the home is distributed by will. If there is no will, the surviving spouse or partner would have to go through intestate succession. In either case, the survivor would not actually own the home right after the death and literally couldn’t sell it even if they wanted to. In many cases, it will be possible to enforce the contract of sale. If the surviving partner or spouse signed the contract, and had been an owner of the house, then he or she can legally complete the sale. The exceptions are few, such as the deceased person being the only one who signed the contract or if the deceased owned the home as an individual.

Case Studies: Contract Options When One Spouse Dies Before Completing a Home Sale

Case Study 1: Enforceable Contract With Joint Ownership

John and Sarah, a married couple, signed a contract to sell their home. Unfortunately, John passed away before the completion of the sale. Since they owned the property as a joint tenancy with the right of survivorship, Sarah automatically inherits the home. As a result, she is legally obligated to honor the contract and proceed with the sale.

Case Study 2: Uncertain Enforceability Without Joint Ownership

In this case, Mark and Sarah, a married couple, considered selling their home. However, only Mark signed the contract. Tragically, Mark passed away unexpectedly. As Sarah was not a signatory to the contract, its enforceability against her becomes uncertain. The outcome depends on legal circumstances, including ownership type and jurisdiction’s laws.

Case Study 3: Non-Enforceable Contract With Individual Ownership

Lisa and John, a married couple, owned their home individually, with no joint ownership. They decided to sell the property and both signed the contract. Unfortunately, John passed away before the sale could be completed. In this case, the contract would not be enforceable against Lisa as the surviving spouse. She would need to follow the legal process of will distribution to determine ownership of the property.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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