If a home is in a married couple’s name and the husband dies, who would inherit it if his Will left the home to his children?

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If a home is in a married couple’s name and the husband dies, who would inherit it if his Will left the home to his children?

My husband and I were both married before and we each have 2 sons from our previous marriages. Our Wills read that any real property we have would go to our respective sons. Our home in NY is in my name only from my previous marriage. We have a 2nd home in AZ in both of our names. If my husband predeceases me, will our 2nd home be in my name alone or would I share ownership with his 2 sons?

Asked on May 3, 2011 under Estate Planning, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Generally speaking, married couples hold property with what is called "rights of survivorshp" which means that if one of them passes away before the other then the property passes to the surviving spouse automatically or "by operation of law."  The property is not considered then to be part of the estate of the decedent.  So I would double check how the property in Arizona is held.  Check the deed.  If it was purchased when you were married then it should go to you as long as it is properly held.  And maybe you should re-write the Wills so that there is no confusion when anyone passes away.  It is better than the fighting that may ensue. Good luck.


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