Does a Will stand-up over a spouse’s rights?

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Does a Will stand-up over a spouse’s rights?

A wife had a home prior to marriage but it was not paid for. The wife got married and didn’t financially contribute much to the mortgage, as the husband made the payments. The wife added the husband to the title on the home. Approximately 5 years after marriage, the wife got ill and passed away. The wife’s sister says that she has a signed Will that was done a few weeks prior to the wife’s passing yet the husband had no knowledge of the Will. The home has some equity in it and was sold, escrow is closing in 1 week. The wife’s sister is saying that she wants half the equity because of the Will that was signed a few weeks prior to the death. Who is entitled to the equity from the home?

Asked on June 26, 2017 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It depends on how the the husband was added to the home's title. If he was added as a joint tenant with right of survivorship, which is the most common way a spouse would be added to a home, then on the wife's death, the home automatically became the husband's as the surviving joint tenant. In that event, the will is irrelevant at least as far as the home goes: because it became his automatically on the wife's passing, it is not part of the wife's estate; becasue it is not part of her estate, the will does not control what happens to it.
There are other ways that the husband could have been added to the title, such as by being made a "tenant in common," in which case the will could potentially give the sister (assuming the will is valid) a claim to the wife's share or interest of the home. It would be a good idea to have a probate attorney review the title, so confirm how the husband was added and the effect on his rights.


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