What to do if my father passed away and his ex-wife, whom left 12 years ago, is still on the deed and she wants half the house?

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What to do if my father passed away and his ex-wife, whom left 12 years ago, is still on the deed and she wants half the house?

They have been divorced for 10 years. He was remarried and lived in this home with his new wife, until her death 5years ago. He also paid off the mortgage and paid all the taxes, homeowners, matience, etc. Now the ex-wife, whom hasn’t stepped foot on the property in 12 years or paid for anything wants half the house. How can I get her off the deed? Also, can I make her pay for the 12 years of bills, taxes, etc that she never paid. Since my dad’s death, I have been paying the homeowners, taxes, etc. Even after my fathers death, she still hasnt paid anything. How can she be entitled when she never put anything in?

Asked on August 11, 2012 under Real Estate Law, New York


Mark Siegel / Law Office of Mark A. Siegel

Answered 11 years ago | Contributor

Under NY law, when a married couple owns real property, they own it as "tenants by the entirety" & if they remain legally married, upon the death of one of the spouses, the surviving spouse becomes the owner of the deceased spouse's interest by operation of law.

However, upon the termination of the marriage by the issuance of a judicial divorce decree, ownership of real property by the ex-spouses is converted to what's known as a "tenancy in common". When property is owned by "tenants in common", the co-owners each have a one-half interest in the real property. Upon the death of one of the owners, the deceased owner's one-half interest becomes part of their estate, but the remaining one-half interest is still owned by the surviving co-owner. 

Based upon your description of the facts (you asked how to get her off the deed), it appears that your father's ex-wife retains a one-half ownership interest in the house, since she did not transfer her one-half interest to your father by separate deed before your father passed away. You can obtain a certified copy of the last recorded deed from the county's land records to confirm ownership. 

Your father's estate retains the other one-half ownership interest in the house. If you wish to resolve the issue of the ex-wife's ownership interest, you will need letters of administration (if your father passed away without a will), or letters testamentary (if he had a valid will & appointed an executor in the will). Once proper letters are issued by the Surrogate's Court (the letters must state that any restrictions on the power of the executor or administrator to sell real property are lifted by the court) the administrator or executor can attempt to negotiate a settlement with your father's ex-wife, which may result in either: a transfer of her one-half interest to the estate, a transfer of the estate's one-half interest to the ex-wife, or a mutually agreed sale of the house to a third party, where the estate & ex-wife have agreed what proportion of the net sale proceeds will be paid to each co-owner.

If a settlement cannot be reached between the estate & ex-wife, the administrator or executor can start a lawsuit in supreme court called an action for partition & sale. Under NY law, certain parties, including tenants in common, can maintain an action seeking a judicially ordered sale of the real property. The Court has the power to appoint a referee in the action to conduct an accounting, which determines the respective contributions for maintenance & upkeep of the house & how the sale proceeds should be distributed after the court ordered sale. When the referee completes the accounting & has reviewed each co-owner's admissible evidence & documentation (including satisfactory proof re: mortgage & tax payments & other expenses), the referee submits a referee's report to the judge, stating his or her findings & conclusions. The judge can confirm or reject the referee's report, or send the matter back to the referee with specific directions from the Court.      

You may wish to retain an attorney who practices in the areas of real property & estate law, particularly if the ownership of the house has to be transferred by written agreement, or if the estate or your father's ex-wife decides to commence legal action. This is a complex legal matter which requires proper evaluation & representation by an attorney based upon the specific facts & the applicable 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 AttorneyPages.com 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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