Does a surviving spouse have any legal claim to real property which was not owned jointly during the marriage?

UPDATED: Aug 22, 2011

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Does a surviving spouse have any legal claim to real property which was not owned jointly during the marriage?

I, a widower, and my wife, a widow, were married a little over 2 years ago. Both she and I owned real property before our marriage with no joint owners. My name has not been added to her deed and her name has not been added to my deed. She executed a Will before our marriage which designates her 5 children as heirs to her real property. After the marriage, I executed a Will in which I designated my only child, a widowed daughter, as the heir of my real property.

Asked on August 22, 2011 Tennessee


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

A possible issue I see concerning the fact pattern that you have written about is where a person has an existing will before marriage to a person not referencing the person he or she is marrying, there is a marriage, the person who has an existing will before marriage then passes away without creating a new will during the marriage mentioning the spouse.

In such a situation, the surviving spouse could claim some entitlement to an interest in the deceased spouse's will under the laws of most states since he or she was not specifically mentioned in the will created before the marriage.

As to the will that you created after the marriage to your spouse, if you designated your only child as the heir to all your property and your will mentioned your spouse, but specifically gives nothing to your spouse in the will, and the will states such, then your daughter would receive all of the items designated in your will if your current spouse survives you.

Good question.

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