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Does real property pass to surviving spouse even if her name is not on the deed?

Floral Park, NY |

If two spouses live in same house for 40 years, but only the husband's name is on the deed at the time of his death, does the wife still get the house as if she was on the deed?

Important: The husband died without a will, and a trust was not set up. The couple have two children. Neither were previously married, nor do they have any children prior to or outside of the marriage. Thank you for your help.

This would be under new york law.

Attorney Answers 4


  1. Best answer

    The house passes through the estate. From the estate the house would be divided between you and your children pursuant to NY intestacy laws. You would have to start an administration proceeding since there is no will.

    Feel free to telephone my office to discuss further.

    Mike.


  2. Call NY probate counsel immediately.

    There are many highly qualified Avvo attorneys listed.

    In CA - name on Deed would not control ownership (e.g., could be "commumity property" or nominee arrangement between spouses for credit or other purposes)

    This does not create an attorney/client relationship. This does not constitue legal advice. It is limited to facts of the question. You should consult an attorney in the appropriate state involved before making any decisions based on this answer


  3. I don't practice law in New York, so the following is not intended as legal advice, but simply as information which may be useful. I located New York's intestate succession statute (link below), and you should have a look. It says what happens to property when someone dies without a will. According to the statute,

    (a) If a decedent is survived by:

    (1) A spouse and issue, fifty thousand dollars and one-half of the
    residue to the spouse, and the balance thereof to the issue by
    representation.

    It appears that the spouse gets $50K plus one half of whatever else is in the estate, and rest of what's in the estate is split equally between the offspring. However, that's just my reading of a statute with no knowledge of other wrinkles in the law that may be operative in New York, including any case law interpreting this statute. You need a New York lawyer's opinion about how the intestate succession statute applies to your circumstance.

    Not legal advice as I don't practice law in New York or hold New York licensure. If you need legal advice, please consult a lawyer who does.


  4. The amount of time a spouse lived with her spouse and all of the family history are irrelevant to the beneficial interest. If her name is not on the deed, it does not pass to her by virtue of being the spouse. It could pass to her to satisfy her elective share (spousal share) if she is otherwise not inheriting her spousal share. But simply becuase she was married and resided there, she is not the beneficiary. However, your question illustrates the importance of having all of your documents in proper form if you want your wishes carried out after you pass.

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