Who Gets the House When a Married Couple Are Separated And the Spouse In the House Dies? Learn How to Protect Your Rights

Question: Husband and wife own house together in California as joint tenants.
They split in 2001, after which wife is the only occupant of the home. She pays all of the property taxes, utilities, and maintenance thereafter.They never seek a divorce or legal separation for religious reasons.
During the past five years husband has not resided in California. Wife drafts a will leaving her assets to her children, and specifically disinherits her estranged husband. One of the children of the wife was living in the house with wife. The wife has died. The wife’s child who lives in the house wants to know what are their rights and what are the rights of the estranged husband in the property.
What are the rights of the children and/or estranged husband as to the house in this scenario?

Answer: What a complicated question; however, the answer in this case may be simple. The couple held the house as joint tenants, not as community property.

JOINT TENANCY: Joint tenancy is a form of co-ownership in which two or more persons, often husband and wife, own property in equal individual interests. Right of survivorship is the key feature of a joint tenancy. A deceased joint tenant’s interest vests in the surviving joint tenant at the moment of death, without requiring probate administration. The interest vests by reason of the nature of the title and, therefore, is not subject to disposition by the deceased joint tenant’s will. So in this scenario the wife’s will is not controlling. The title controls. If the husband is alive it is bad news for the child of the wife. No probate case needs to be opened. The property passes to the husband.

But, is the husband alive? The person that asked me this question did not specifically say he is alive. However, one might infer he was alive from her statement in her question: “During the past five years husband has not resided in California.”  If the husband died before the wife, then the wife would have sole ownership per the law of joint tenancy.

COMMUNITY PROPERTY: Community property is also a form of co-ownership, but is applicable only between husband and wife. Like joint tenancy property, each spouse’s interest in community property is equal during their marriage. Unlike joint tenancy, however, each spouse’s one-half community property interest is subject to disposition by the deceased spouse’s will. In the question above if the title was in the names of the parties as community the wife’s will would control her share but husband would be entitled to his share. If wife had no will to dispose of her share, in other words no disposition of her share is indicated, the interest of the wife wouldl pass to the surviving spouse. Like joint tenancy, if the deceased spouse’s interest passes outright to the surviving spouse, no probate administration is required.

Summary Takeaway for Prospective Clients: 

1. You need to think about stuff you don’t have time to think about and don’t want to think about because you don’t, among other thing, want to contemplate your own death, you don’t want to ask your fiance for a prenuptial agreement, etc.
2. You need to check your estate plan whether you are married, getting a divorce, or living together with someone.
3. Look at the outcome of this person who wrote this question. It is likely a disaster. Don’t do this to your family.
4. Here is a link to an article on why prenups are a good idea for everyone that gets married. Especially if you’re correct that you will not get divorced. It’s an estate planning tool.
5. Here is a link to an article on estate planning in the context of divorce.
6. Here is a link to an article regarding how California law determines community property.

Galen Gentry assists clients in Los Angeles and Southern California with estate planning, prenuptial agreements,  divorce, determining community property and community debt, distinguishing separate property and with issues relating to spousal support, child support and custody.  Mr. Gentry has 30 years of experience and can help people to protect their interests. Call at (310) 282-7521 to schedule a free consultation.