What happens if a spouse dies and the house is in his name before and during the marriage?

Families can suffer if a spouse dies suddenly and leaves behind no will explaining how they would like to see their assets divided. This is particularly true when multiple people claim one or a bundle of assets, like properties.

According to Legal Zoom, spouses are given priority over children in most cases where a will is missing. However, the story differs by state, and there are a few other variables to keep in mind.

The story differs by state

First, some terms. If you die with a will, you are known as testate, and if you die without one, you are known as intestate. We will be taking a look at intestate succession.

The estate is the combination of all assets of the deceased. This includes property, and if a surviving spouse is not on the deed and the deed holder passes away without a will, the allocation depends on a state’s intestate succession laws.

In some states like New York and Alabama, surviving parents of the deceased may receive part of the estate. In another vein, whether or not the spouse will inherit the entire estate has to do with whether or not the children of the deceased are also the children of the window(er).

In Alabama, all assets of the deceased are given to the surviving spouse if they do not have any living parents or children. If their parents are still alive, “the first $100,000.00 in value, plus one-half of the balance of the intestate estate,” will be passed to them. Additionally, if the deceased has children that are shared with the surviving spouse, “the first $50,000.00 in value, plus one-half of the balance of the intestate estate” will be directed to them; further, if the children are not related to the widow, half of the estate will be inherited.

In contrast, in Alaska, if children are shared between the deceased and the surviving spouse, the entire estate is still inherited by the latter. Similarly, in Vermont, the spouse inherits the estate if the couple had children together, but if the children are from a previous relationship, the estate is split.

Those looking into what the rules are in their state can check out Find Legal, which offers a comprehensive list of the laws in each jurisdiction.

A final word of advice: Create a will

The moral of the story is it is best to leave a will to dictate how assets and the entire estate should be split to avoid losing one’s home in the case of sudden death. This is particularly critical with regard to a property because if not, a spouse may have to leave their home if there is no will dictating how the estate is to be divided.