Does a widow have any rights to ahouse if her name isn’t on the deed?

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Does a widow have any rights to ahouse if her name isn’t on the deed?

My husband’s father and his mother were separated and she was not living here when he passed away (though they were still married). I don’t think her name is on the deed at all. Does she have any rights? Do I need to have her sign the deed over to us before we build a house here?

Asked on April 18, 2011 under Estate Planning, Tennessee

Answers:

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

Answered 10 years ago | Contributor

In many states, TN included, a survivng spouse is entitled to something known as an "elective share".  Basically this means that they can elect against the Will (or intestate estate if there is no Will) and receive a share of the estate, including the homestead.  This is the law as long as the survivng spouse and the deceased were legally married at the time of death.  And in your case they were still married (although separated).  The surviving spouse may have waived her rights to her elective share in some way (doubtful but possibly in the separation agreement if it was a legal separated).  Bottom line, you absolutely need to address her rights to the house.  Since this can all get complicated, you really should consult directly with an estate planning or probate attorney in your area.


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