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Don't assume your surviving spouse will inherit the home

by Amelia Burke | Contributor
June 16, 2021

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Many married couples assume that their surviving spouse will automatically inherit their home when the other dies. Unfortunately, it's not that simple. The issue only gets more complicated when the couple is married later in life or has a blended family. It's critical to engage in smart estate planning to ensure that your home is left to your spouse or other intended beneficiary. Putting off estate planning based on the assumption that your spouse will automatically inherit the house is a mistake.

When does a surviving spouse inherit the home if you die without an estate plan?

The answer to the question of when will your surviving spouse inherit the home if you die without an estate plan is "it depends." If they are named on a survivorship deed, they will get ownership of the house. However, if your spouse is not on the deed, and you die intestate (without an estate plan), whether or not your spouse will inherit the home depends heavily on if you live in a community property state or a common law state.

When does a surviving spouse inherit a home in a community property state?

an opened jewerly box with keys to a house inside

In community property states, whether your surviving spouse inherits the home depends on if the house is community property or separate property. Community property includes all property acquired by either spouse during the marriage. Each spouse is granted half ownership of all community property. Property acquired before marriage is separate property. In addition, inherited or gifted property is separate property. To make the issue more complicated, separate property can become community property if it is commingled. Commingling occurs when separate property is mixed with marital property. For example, a house can become community property if both spouses live in the home and joint funds are used on upkeep and repairs. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

When you die intestate, 100% of the community property acquired during the marriage goes to your spouse if there are no children outside the marriage. If there are children from a previous relationship, a percentage of your community property will pass to your surviving spouse and a portion with go to your children.

Separate property is divided between your surviving spouse and any children. The percentage of the property that goes to each party depends on the laws of your state. The calculation may change depending on if the children are shared with your surviving spouse or are from a prior relationship. If there are no children, all your property typically goes to your surviving spouse. Every state has its own intestate laws, so it is critical to consult with an estate planning professional to understand the laws of your state.

The following are three scenarios that commonly occur in community property states.

1. The home was bought during the marriage

If your home was bought during the marriage and you die intestate, the property will go to your surviving spouse. For example, Margaret and Bill were married in 1986. In 1988, they bought a home in Texas as a married couple. During their marriage, they had two children together. Only Bill was named on the mortgage note. When Bill died in 2017 without a will, the home became the sole property of Margaret.

2. The home was bought before the marriage

If the home was bought before your marriage, you enter into a gray area. Although the home starts as separate property, there is a chance that it was transformed into community property throughout the marriage. For example, Steve bought a house in 1996 as a bachelor and married his wife, Lucy, in 2001. During the marriage, Lucy contributed to the property taxes and helped pay for a new roof. The home became community property, and when Steve died in 2015, Lucy inherited the house.

On the other hand, if Lucy made no contributions to the maintenance of the home, the children could argue that the home remained separate property and should be divided as part of the larger estate.

3. The home was inherited or gifted

Homes that were inherited or gifted are treated the same as homes that were bought before the marriage.

When does a surviving spouse inherit a home in a common law state?

Unlike in community property states, a spouse is not automatically entitled to a one-half interest in property acquired during the marriage in common law states. Instead, property ownership is based on the name on the deed. When an individual dies intestate, the surviving spouse is entitled to a share of the probate estate. The percentage that the surviving spouse is entitled to depends on the state's intestate laws and whether or not there are other close relatives, such as children and parents, alive.

For example, when Bob bought his Pennsylvania home in 1981, he was single with two children from a previous relationship. He was married in 1988, but he never added his wife to the deed. When he died in 2001, the home was included in the estate and was divided in half between the wife and children.

Can the deceased's children evict the surviving spouse from the marital home?

The law provides special protection to surviving spouses. In some states, this means that they are given the right to remain in their marital home, even if it was inherited by other beneficiaries. This is sometimes referred to as a probate homestead. While the surviving spouse exercises their right to remain in the home, they typically cannot be evicted by the owners. The surviving spouse is obligated to pay for the upkeep of the property, property taxes, interest on any mortgage and utilities while living in the home.

Whether or not you have this right and how long you can remain in the home depend on your state's laws. This area of the law is complicated, and you should always consult with an experienced estate planning attorney.

Estate planning strategies

You can use various estate planning strategies to ensure the surviving spouse receives ownership of the family home. You should speak to a qualified estate planning professional to decide which option is best for you and your family. Basic estate planning options include:

Survivorship deeds

With a survivorship deed, the property is titled jointly with rights of survivorship. While you are alive, both you and your spouse own the property together in equal shares. After you die, complete ownership of the home is automatically and immediately transferred to your spouse. A survivorship deed is a straightforward way to leave your home to your spouse. It avoids probate and, if you become incapacitated, your spouse can manage the property and sell or refinance the home without going to court.

There are some drawbacks to using survivorship deeds. First, after your spouse is added to the deed, the property is exposed to your spouse's debts and obligations. Secondly, once you put your spouse on the title, you cannot remove them without their permission.

Transfer-on-death deed

In a transfer-on-death (ToD) deed, the owner of the home designates an individual as the beneficiary. Your beneficiary has no ownership rights during their life. When you die, the beneficiary automatically becomes the owner of the house. Only certain states permit ToD deeds.

If you change your mind, you can revoke the deed at any time without approval from the named beneficiary. Like survivorship deeds, a ToD deed avoids the time and expense of probate. Additionally, there are tax advantages of ToD deeds. There is no federal gift tax, and beneficiaries enjoy a stepped-up cost basis, meaning any capital gain is based on the value at the date of death, not the value when you initially acquired the property.


You can specify that you want your spouse to inherit your home in a will. If your spouse is planning to sell the house after you die, a will provides tax advantages. Your spouse, or other beneficiaries, will get a stepped-up cost basis (only the increase in worth since you passed away gets taxed).

The primary disadvantage of using a will is that the home must go through probate. The probate process can be lengthy and expensive. Additionally, probate is public and gives interested parties the chance to contest the will. Creditors are notified, and the home may end up subject to a lien. Finally, a will does not plan for incapacity.

Revocable living trust

A revocable living trust is a tool that allows you to transfer ownership of the home to a trust. You can manage and benefit from the property in the trust while you are alive. When you die, the home is automatically transferred to your named beneficiaries. A revocable trust avoids probate and gives you the ability to change your mind and revoke the trust if circumstances change. Additionally, your successor trustee can step in and manage the home if you become incapacitated.

Qualified personal residence trust (QPRT)

A QPRT is a type of irrevocable trust. In a QPRT, you retain an interest in the home for a term of years that you define. After the term is complete, the house is transferred to the named beneficiaries.

QPRTs reduce gift tax. However, this is only applicable if you are leaving your home to someone besides your spouse. Individuals can transfer property to their spouse free from tax. It also reduces your estate tax burden. This is beneficial for individuals who have large estates. In 2022, the federal estate tax exemption was $12.06 million for an individual. Since it is irrevocable, you cannot change or revoke the trust once it is created.

Can you prevent your spouse from inheriting your home?

The first and best way to ensure your spouse does not inherit your home is through a valid agreement signed before marriage (prenuptial agreement) or after marriage (postnuptial agreement). These agreements trump state laws regarding community property and elective shares.

To be enforced, the prenuptial or postnuptial agreement must be valid. Every state has its own requirements for creating a valid prenuptial agreement. Common requirements include:

  • Both spouses must voluntarily agree to the terms.
  • Both spouses must provide complete and accurate financial disclosures.
  • The agreement must be in writing.
  • The agreement cannot be unconscionable.

In the absence of a valid agreement, state law is applied. In community property states, a person cannot bequeath their spouse's share of community property. If the home is marital property, one spouse does not have the right to give away the house. The deceased spouse does have the right to give away their share of the community property and any separate property.

Common law states have laws to protect a spouse from being completely disinherited. Many states give surviving spouses the option of "taking against the will." The surviving spouse can decide whether they want to inherit what was left to them in the will or taking a portion of the deceased's estate. The percentage of the estate that the spouse is entitled to and whether it includes both probate and non-probate property depends on state law. Typically, the share is around one-third of the estate. The right to "take against the will" is referred to as elective share rights.

If you want to prevent your spouse from inheriting your home, elective share rights can cause complications when the house is a significant portion of your estate. Depending on the state the property is located in, you may be able to avoid elective share statutes by keeping your home out of the probate estate. Putting the house in a trust or using a transfer-on-death deed are two ways to achieve this goal.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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