Married couples usually own most, if not all, of their valuable property together. If you want to leave everything to your spouse when you die, as many people do, you don't need to worry about what belongs to you and what belongs to your spouse. If you'd rather divide your property among several beneficiaries, you'll need to know what's yours to leave. Show
Common Law States: Ownership by TitleMost states (except the community property states listed below) use the "common law" system of property ownership. In these states, it's usually easy to tell which spouse owns what. Look at the deed, registration document, or other title paper: If you're the only person named, the property is yours. You are free to leave your property to whomever you choose. If an item doesn't have a title document, generally you own it if you inherited it, paid for it with money you earned, or received it as a gift. To protect spouses from being disinherited, most common law states have an exception to these rules: A surviving spouse can often claim one-third to one-half of the deceased spouse's estate, no matter what a will or title says. (Learn more about inheritance rights.) Joint OwnershipIf you and your spouse have joint ownership of the property—meaning both of your names are on the title—you each own a half-interest in the property. Your freedom to give away or leave that half-interest depends on how you and your spouse share ownership.
Community Property StatesThe rules are different when you live in one of the states that use the "community property" system of property ownership in marriage. Here's a list of the community property states, with links for more details:
What Is Community Property?Community property is property that is owned equally by the spouses. In community property states, money earned by the spouses during marriage and all property bought with those earnings are generally considered community property. Likewise, spouses are equally responsible for debts incurred during marriage. When one of them dies, that spouse's half of the community property goes to the surviving spouse unless there is a valid will that directs otherwise. Community property includes:
What Is Separate Property in a Community Property State?Living in a community property state doesn't mean that a married person can't own their own property. Property that is owned by only one spouse is "separate property." A spouse can leave separate property to anyone. Separate property includes:
Generally, these rules apply no matter whose name is on the title document to a particular piece of property. For example, if you live in a community property state and own a car with the title in your name only, your spouse might still own a half-interest in the vehicle. Examples of Community vs. Separate PropertyHere are some other examples to illustrate the differences between separate and community property:
Opting Out of Community Property OwnershipMarried couples don't have to accept the rules about what is community property and what isn't. They can sign a prenuptual agreement, postnuptual agreement, or other written agreement that makes some or all community property the separate property of one spouse, or vice versa. Avoiding ProbateSeveral community property states offer a way of holding title to community property that avoids probate when one spouse dies. It's called "community property with right of survivorship." If a couple holds this type of title to property—a house, for example—the property will automatically belong to the survivor when a spouse dies, without any probate court proceedings. States Where You Can Opt In to Community Property OwnershipIn a few states (listed below), married couples can opt in to the community property system or designate specific assets as community property. AlaskaIn Alaska, spouses can opt in by creating a community property agreement that states all (or some) property and income acquired by the spouses during the marriage is considered community property. Spouses can also establish a community property trust which covers specific assets—all property transferred to that trust will be treated as community property. (See Alaska Stat. §§ 34.77.010—34.77.995 (2022).) FloridaIn Florida, spouses can create a "community property trust." To create the trust, spouses must follow certain rules. For example, the trust must state that it is a community property trust, and be signed by both spouses. (See Fla. Stat. §§ 736.1501—736.1512 (2022).) KentuckyIn Kentucky, spouses can create a "community property trust." The trust must state that it is a "Kentucky community property trust" and must have a warning about the legal consequences of putting property into the trust. Any property the spouses transfer to this trust will be treated as community property. (See Ky. Rev. Stat. §§ 386.620—386.624 (2022).) South DakotaIn South Dakota, spouses may create a "South Dakota special spousal trust," which must include a written declaration that the property is "community property." Any property the spouses transfer to this trust will be treated as community property. (See S.D. Codified Laws §§ 55-17-1—55-17-14 (2022).) TennesseeIn Tennessee, spouses can create community property rights to property or assets that they transfer to a valid community property trust. Among other requirements, the trust must state that it is a "Tennessee community property trust," and must have a specific warning about the legal consequences of putting property into the trust. Any property the spouses transfer to this trust will be treated as community property. (See Tenn. Code §§ 35-17-101—35-17-108 (2022).) Next StepsYou can learn more by reading Plan Your Estate by Denis Clifford (Nolo). If you're ready to make your estate planning documents, you can create a customized will today using Nolo's Quicken WillMaker. Or if you want a lawyer's help or advice, contact an estate planning attorney. Am I entitled to my husband's property if he dies and my name isn't on the deed in California?If the house was purchased before you and your spouse got married, or if your spouse received it as a gift or inheritance, it will likely be considered separate property owned solely by your spouse. This means that if your name is not on the title, your spouse can leave the property to anyone they want in their will.
What happens if my husband died and I am not on the mortgage?Federal law prohibits enforcement of a due on sale clause in certain cases, such as where the transfer is to a relative upon the borrower's death. Even if your name was not on the mortgage, once you receive title to the property and obtain lender consent, you may assume the existing loan.
What if my partner dies and the mortgage was in their name only?Assumption of Mortgage After Death of a Spouse
In this case, the surviving spouse would become the sole owner. If you are the only one on the mortgage but are married, even if you don't have a Will, it is likely that through intestacy laws, your spouse will still inherit the house.
What are my rights if my name is not on a deed but married in PA?If the wife's name is not on the deed, it doesn't matter. It's still marital property because it was bought during the marriage. This makes it marital property and is still split between both parties. The wife is entitled to receive either equal share or equitable share of the house.
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