Am I entitled to everything when my name is on the mortgage but not on the deed if my husband dies?

UPDATED: Sep 18, 2012

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

UPDATED: Sep 18, 2012Fact Checked

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

Am I entitled to everything when my name is on the mortgage but not on the deed if my husband dies?

Even though his Will stated that I will get everything. We are married for 15 years; no kids under 21. Am I entitled to half of his property/assets/pension retirement if we get divorced since I don’t work?

Asked on September 18, 2012 under Estate Planning, New York


Mark Siegel / Law Office of Mark A. Siegel

Answered 10 years ago | Contributor

The answer to your question regarding ownership of real property upon the death of a spouse, would depend upon whether the real property was purchased during the marriage & was legally considered marital property. Spouses may own real property in their individual name before they are married & such property may be considered separate property, rather than marital property. If so, upon death, the deceased spouse's interest in the real property would pass into a deceased spouse's estate.

Under NY law, marital property is owned as "tenants by the entirety". Upon the death of a spouse, their interest passes to the surviving spouse by operation of law. This means that upon death, their interest in the real property passes to the surviving spouse, outside of the deceased spouse's estate. Your status as a borrower on the mortgage note only determines your legal obligation to repay the mortgage to the lender, it is not proof of, or otherwise determine, legal ownership of the real property.

If you subsequently obtain a divorce decree in court, then the ownership of any marital property converts from "tenants by the entirety" to "tenants in common". So if the ex-spouses continue to co-own the real property after the divorce decree is entered, upon the death of one of the ex-spouses, their one-half interest would become an asset of the deceased ex-spouse's estate. Their one half interest in the real property would be distributed under the terms of a will, or if there was no will at the time of death, then the ownership interest would be distributed to surviving relatives in accordance with the NY statute governing intestate distribution of property.

You should consult with a matrimonial attorney regarding your rights to other property in a divorce under NY law.     

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption