MIf mfather died a few months ago and was married, who gets the house his wife or his children?

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MIf mfather died a few months ago and was married, who gets the house his wife or his children?

He had a house in his name only.

Asked on August 4, 2010 under Estate Planning, Tennessee

Answers:

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

Answered 10 years ago | Contributor

If your father left a will, the provisions of the will determine who receives the house.  If your father died without a will, the rules of intestate succession are applicable to determine the disposition of his estate.  Intestate means dying without a will.

If your father did not leave a will, intestate succession would result in the surviving spouse receiving the house.  If there had not been a surviving spouse, each child would receive an equal share of the house.  For example, if there were three surviving children, each child would have a 1/3 interest in the house.   If there were three children, but only two survive, and the deceased child had children, those children (grandchildren of your father) would divide the 1/3 share their parent would have received if the parent had survived.  The other two surviving children would each receive their 1/3 share of the house as in the previous example. 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The answer is both, if there is no will. When there is no will, an estate passes by what is called "intestate succession." Intestate succession sets our priorities for which relations get what. Each state has its own laws on the subject.

In Tennessee, if there is a surviving spouse and also surviving children, if there is one child, I believe the child and spouse each get 1/2 the estate. If there are 2 or more children, I believe the spouse gets 1/3 and the children split the balance. However, this would be a good thing to consult with a trusts and estates attorney about, to verify how intestate succession will play out in this specific case. Good luck.

 

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