Laws of Inheritance: When the Surviving Spouse Is Not on the Deed?

If the surviving spouse is not on the deed to their house, the property typically passes through probate, which may include heirs other than the surviving spouse! That may mean unintentional disinheritance of the surviving spouse, with that spouse being left with rights to receive a possibly smaller share of other assets, but probably not the house. If the living spouse was in the will though, then a transfer of title may happen instead. If this is not the case, as with my recent interaction, assets in the estate go through the probate process.

That is why it is ideal in the laws of inheritance to have both spouses on the deed to any property, whether it is a primary residence or a vacation property. It is also important to have the deed properly recorded!

As mentioned above, both spouses should be on the deed. One should not assume the “set and forget” method of estate planning though as life often changes, and changes require review. So how often should you review your estate? The easy answer is to review the deed any time the mortgage is refinanced or when property is sold. In an ideal world though, couples should consider reviewing their property assets every 3-5 years when reviewing other estate planning documents.

Challenges I often hear of are when couples don’t want to put their kids or someone else on the deed to their home or on other property.  The possibility of lawsuits is often a reason why couples don’t want this. Frankly that’s a good asset protection strategy too! In the case of this, couples would include their children in their will or trust instead and that is a whole other blog post!

In the end, it is important that spouses communicate about all financial affairs. This is the best strategy in the relationship and in life. In the case of my client, doing so would have helped her to plan and avoid having their home go through probate. Laws of inheritance are complex, without proper planning, a surviving loved one may be subjected to unintended expense, delays and legal hardships. Don’t let that happen to you!