If my husband holds title to our house in his name only, what will happen if he dies?

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If my husband holds title to our house in his name only, what will happen if he dies?

My husband bought our house before we were married and titled it in his name only. he pays the mortgage on it, so he feels that its his property if we were to divorce. That’s unlikely, but what would happen to this property if he should die before I do? Would the property become mine as the surviving spouse? Or would it have to go through probate court? Could I lose the house all together, if he doesn’t have a will? He has no children, so would I become the sole owner of the property?

Asked on February 1, 2012 under Real Estate Law, Maryland

Answers:

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

Answered 9 years ago | Contributor

If you live in a community property state such as CA, community property is property acquired during marriage.  Community property also includes income during marriage.  Each spouse has a one half interest in community property.

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

Since the house was purchased before marriage, it is your husband's separate property.  As seoarate  property, if your husband leaves a Will, he could leave the house to anyone he chooses.  If he does NOT leave a Will, the rules of intestate succession determine inheritance.  Intestate means dying without a Will.  Under intestate succession, you as the surviving spouse would inherit the house and your husband's entire estate.

If your husband made payments on the mortgage during marriage and those payments were from income during marriage, you could argue that those payments are community property and you would have an argument for one half the value of the house represented by those payments.  Also, if improvements were made to the house during marriage from income during marriage, the increased value of the house would be community property and you would have a claim for one half the amount of those improvements.  A spouse cannot will away the community property.

As for  probate, the size of the estate determines whether or not probate is required.  The amount beyond which probate is required varies from state to state.

As for the above discussion of community property, if you don't live in  a community property state, other rules may be applicable.


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