What will happen if my husband dies and he has a house that is paid but my name is not on the deed?

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What will happen if my husband dies and he has a house that is paid but my name is not on the deed?

Asked on March 26, 2012 under Family Law, Indiana

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If your husband dies without a Will, the rules of intestate succession determine inheritance.  Intestate means dying without a Will.  Under intestate succession, as the surviving spouse, you would inherit your husband's estate which would include the house.

If you live in a community property state, community property is property acquired during marriage.  This also applies to income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  This also applies to income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

If your husband leaves a Will and if the house was purchased before marriage, it is his separate property.  As separate property, he could leave the house to anyone under his Will. 

If the house was purchased during marriage, it is community property and you would have a one half interest in the house.  Your husband cannot leave the entire house to someone else in his Will because you would have a half interest as community property.

If the house was purchased by your husband before marriage, but was paid for with funds during marriage, the house is community property because income during marriage used to pay for the house is community property.  You would have a proportionate interest in the house based on the percentage of community property funds used to pay for the house.  If improvements were made to the house during marriage and those improvements were paid for with community property funds, the enhanced value of the home based on those improvements would be community property and you would have a claim for half the value of those improvements.

If the house was paid for entirely with your husband's separate property funds and improvements were paid for with his separate property funds, then the house is separate property and he can leave the house to anyone under his Will since the house is his separate property.  You would not have any claim to the house under that scenario because a spouse has no claim to the other spouse's separate property.

If you don't live in a community property state, other rules may be applicable.


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