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

UPDATED: Sep 30, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 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.

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.

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