The way in which a husband and wife own property, or take title, is recited within a few short sentences in their deed. The words may be few, yet determine future ownership of the property. Consequences can be dire if the wording is inconsistent with the intentions of the property owners, particularly for blended families or the widow of a spouse who dies without children.
Rights of Survivorship
One way in which a husband and wife may own property is as joint tenants with rights of survivorship. With survivorship, if one of them dies, the surviving spouse becomes the sole owner of the property. If there are no survivorship provisions, such as with tenants in common, then the surviving spouse retains half of the property but the remaining half goes into the deceased spouse's estate. For example, if the husband dies, ownership will be determined by his last will and testament or by state law. Even if the husband left his half of the property to his wife in his will, the will generally has to be probated for his widow to immediately obtain good and marketable title to the property.
One spouse may own the property outright, meaning that spouse has a fee simple interest in the property, while the other only has a life estate in the property. For example, the husband may have deeded his wife a life estate interest in property he owned previously, or she may have deeded her interest in the property to her husband and reserved a life estate to herself. Either way, if she owns a life estate in her husband’s property, she merely owns the right to live there or possess the property until her death.
If her husband dies, the property may pass to his children, but so long as his widow owns the life estate, the children cannot terminate her ownership without a court action. Generally, the widow has no rights to sell, lease or mortgage the property unless her life estate is an enhanced life estate, which is only recognized in a few states. An enhanced life estate allows the widow full control of the property until her death, including the power to sell.
If a wife dies before her husband with no survivorship provision in their deed, then her share of the property will pass through her estate. An estate may be probated or administered in probate court whether or not there is a will. If the wife dies leaving a will, her property will pass to those named as beneficiaries in her will. If she dies without a will, then her property will pass to her heirs at law, according to the state where the property is located.
Her surviving husband will be one of those heirs, but state law will determine how much of the property he acquires as opposed to the share inherited by her children. If survivorship provisions were inadvertently omitted from a deed, then the surviving husband could become joint owners with his wife’s children from a former marriage, or even with her parents or siblings, depending on state law.
Disclaimer of Interest
If a deed contains survivorship provisions, yet the surviving husband does not want to receive his deceased wife’s share of the property, he may disclaim or refuse the share by filing a disclaimer of interest with the probate court where his wife’s estate is being probated. This effectively transfers his wife’s share into the estate as if there were no survivorship provisions.