Article 71-Estate Planning Series: Where Will You Live After Your Spouse Passes?

Written by Wright Law on . Posted in Estate Planning

It is your second marriage and you live with your spouse in the home she brought to the marriage.  When she passes away, what right do you have to continue living there?   Some people assume that, because they were married, they will be able to continue living in that home even after their spouse passes.  This is not at all necessarily true.

In almost all cases, the ownership of real property (i.e. land and the structures on that land) is determined by the names on the deed.  A deed is the document you receive when you purchased a home or other real property.  It is your proof to the rest of the world that the real property is yours.

Marriage, however, is a special relationship, even as it relates to property ownership.  If a married couple purchases real property, that property is typically owned by the “community” even if only one spouse’s name is on the deed.  If the home is “community property,” each spouse owns a one half interest even if the name of only one spouse is on the deed.

However, in a second marriage, it is not uncommon for one spouse to move into a home already owned by the other spouse.  In that case, the home does not suddenly become property of this new “community.”  Instead, the home will likely be the “separate property” of the spouse who originally owned the home.

If that spouse passes away, what right will the surviving spouse have to stay in the home?  In fact, the surviving spouse will likely have no right to stay in the home unless given that right in the deceased spouse’s will or trust.  If given that right, how will this affect the rights or interests of the children from the deceased spouse’s first marriage?  Next column, I will discuss some ways the interests of both the surviving spouse and the children of the first marriage can be balanced.

© 2016 Steven J Wright  

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