If only one person’s name is on the deed to a home and they pass away does the spouse automatically assume the home

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If only one person’s name is on the deed to a home and they pass away does the spouse automatically assume the home

My father-in-law passed away four years ago and
his name is the only name on the deed and on
the mortgage as well. My mother-in-law moved
out and let my children move in. My ex-husband
is now trying to take ownership of that home.
How would they have to go about that?

Asked on May 12, 2019 under Estate Planning, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You do not mention your father-in-law having had a will, so we will assume there was none. When there is no will, property passes by "intestate succession" (the rules for who gets what when there is no will). If your father-in-law only had children with your mother-in-law (e.g. your ex is the child of your father- and mother-in-law), then the mother-in-law inherited everything: she became 100% owner of the home and your ex has no rights to it (and so can't take ownership) until she passes (if he inherits; e.g. if she does not will it to someone else) or unless she sells, gifts, etc. it to him. 
If you ex is your father-in-law's child by someone other than your mother-in-law (e.g. by a prior wife or girlfriend), the the mother-in-law and your ex each inherited a 50% interest in the home. In that case, as an owner, your mother-in-law can let your children live there, and your ex cannot stop that (any owner can let other people live there). He also cannot take 100% ownership unless your mother-in-law voluntarily gives or sells her share/interest to him. What he can do is bring a legal action to get a court order forcing the home to be sold, with the proceeds of the sale (after paying any costs of sale and paying off any mortgages or liens) being split between him and your mother-in-law.


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