People often wonder ‘when a spouse dies who gets the house’? This topic is related to the broader subject of Wills and Estate Planning. People may also ask ‘does my house go to my partner if I die’? This depends on different factors.
As you are aware, Wills are legal documents that specify how executors should distribute the assets, deceased estate or a deceased person’s property after the Will-maker’s death.
The Will-maker, or the “testator” must provide clear instructions in the Will. They need to appoint an executor who will be responsible for distributing assets, and administering the deceased estate.
But it is important to realise that people may not actually prepare a Will in their lifetime. If they die without a Will, they are dying intestate.
In such cases, there are different rules and laws that apply for the distribution of their assets and estates. So one thing is clear, there are broadly two responses to the question ‘when a spouse dies who gets the house?’
This is because it depends on whether on not that individual had a legally valid Will in place. So another important question then is, ‘when a spouse dies who gets the house if there’s no Will?’ In this article, we aim to explore these questions within the context of Wills and Estate Planning law.
Example #1: When a Spouse Dies Who Gets The House?
In this example, we assume that the spouse in question had left a valid Will in place. In such a scenario, given that the house is a valuable asset, the person must have made appropriate arrangements.
For instance, the deceased party can clearly state that the house will be under his/ her current partner’s name following his/her death. If this happens, their partner will automatically inherit the property.
The executor of the Will has the responsibility to contact all beneficiaries and inform them about their assets and inheritance. The Will-maker can make his/her own decisions based on personal wishes. They can allot assets to beneficiaries including their family, close friends, and even some charity organisations in some cases.
So in this example, the testator can choose to leave the house or property title on his/her partner’s name, or children’s name, or however they see fit. It is important to note that other family members do have the right to make claims against the estate.
For example, let’s consider that Mrs Butler dies, leaving the house in the name of her oldest daughter. However, the youngest son believes that he has a claim over her property, and argues that he is the one who looked after Mrs Butler.
In such a case, if the son truly believes that he is entitled to receive more, or to receive Mrs Butler’s house, he can file a family provision claim. Through this claim, the youngest son can state that he has not been adequately provided for in the Will of Mrs Butler. In other words, the youngest son is contesting the Will.
There are many factors that can determine whether or not the family provision claim will be successful. Moreover, there are only certain people who have the right to make such a claim.
This includes the deceased person’s children, step-children, former spouse, de facto partner, and grandchildren among others.
This example has discussion the question ‘when a spouse dies who gets the house’ in the context where the testator had a Will in place.
Example #2: When a Spouse Dies Who Gets The House?
In this example, we will explore the question of ‘when a spouse dies who gets the house?’ in a context where the spouse in question died without leaving a Will in place.
As mentioned above, this is called dying intestate. In such cases, there are state laws that will be applicable. Intestacy laws may differ from state to state.
Therefore you have to be aware of the laws that are applicable in your jurisdiction if someone dies intestate. Firstly, family members will need to obtain an Order from Court that allows them to administer the estate of the deceased, or the house of the deceased.
In other words, the Supreme Court will grant Letters of Administration to someone who will be responsible to administer the deceased’s estate.
When following intestacy laws in NSW, some parties will be prioritised over the others. For example, the surviving spouse and surviving children of the deceased will have more claims to their asset, real property, estates and any other property. Following this, the spouse from previous marriage, or children from former marriages can also have a claim to the estate.
According to the intestacy rules stated in the Succession Act (2006) in NSW, the surviving spouse of the deceased will have priority over all other relatives for a share of the deceased’s assets and estates.
Joint Ownership of House?
When a spouse dies who gets the house if they were joint tenants? Generally, two parties jointly own their marital home i.e. they have joint tenancy agreements. This is known as “community property” interests in countries like the US.
This means that married couples jointly own the entire house. In such scenarios, if one spouse dies, the surviving spouse will have all rights and full ownership of the property that was jointly owned.
In other words, in a joint ownership arrangement, if one spouse dies, the surviving spouse automatically becomes the sole owner of the house. This may also happen in the case of joint bank accounts.
On the other hand in cases where two parties are “tenants in common”, the rules can differ slightly. If one owner dies and they have “tenants in common” agreement with another person, the property name does not automatically transfer to the other person.
Although it is owned jointly, it does not mean they shared “equal” ownership. In this case, the share of the property belonging to the deceased becomes a part of their estate.
Seeking Legal Advice From Wills and Estate Planning Lawyers
In this article we have explored some scenarios to answer the question ‘when a spouse dies who gets the house?’ To summarise, we have explored that, this can either depend on whether or not the deceased spouse had left a valid Will. In case they had, the house will go to whoever the deceased had nominated as the beneficiary of the house.
If there was no Will, intestacy laws will apply. Parties will also need to seek letters of administration to manage the estate. Lastly, if the spouse had a joint ownership agreement with their partner, their surviving partner will automatically get the house after the spouse dies. If you were a joint tenant, and are confused about the next steps, contact our efficient lawyers today.
Estate planning can be a lengthy and complicated process. Many people delay making a Will because they are not comfortable with the idea of passing away. Of course, this is human nature and is understandable. But, we cannot understate the importance of preparing Wills.
Our lawyers are simply a phone call away, and we are passionate about helping people within our community with family law, Wills, deceased estates, property law, commercial law or criminal law matters.
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If you have questions similar to ‘when a spouse dies who gets the house’, do not hesitate to reach out to our team of lawyers today. Get in touch with our friendly and experienced solicitors here.
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