The transfer of property deed upon a spouse's death

Written by phil m. fowler
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The transfer of property deed upon a spouse's death
A new property deed may be necessary upon the death of a spouse. (rare paper image by Chad McDermott from Fotolia.com)

When a spouse is an owner or a co-owner of property at the time of his death, then a deed of conveyance may be necessary to convey the deceased spouse's title to the surviving spouse. In some instances of joint ownership, however, a deed is unnecessary, as the surviving spouse will automatically take full title to the property immediately upon the deceased spouse's death.

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Ownership Types

Spouses can own property jointly or separately on the property deed. Generally, the spouse who is actually named on the deed is the owner of the property. If both spouses are named, then they are considered co-owners; but if only one spouse is named on the deed, then that spouse is the separate and sole owner. The spouse who is not named on the deed may have a marital interest in the property; but because she is not on the deed, she does not have a recorded paper interest in the property.

Separately Owned

When a spouse passes away and he is the only spouse named on the property deed, then a new deed is necessary to convey title to the surviving spouse, or to whomever the deceased spouse names in his will as heir to the property title. Shortly after the deceased spouse's death, the deceased's probate executor will take control of the deceased spouse's estate and will pass the estate through a legal court proceeding called probate. Part of the probate process will involve the executor signing a new deed conveying the deceased spouse's title to the heir named in the will, or if there is no will, the heir named under state law, which is generally the surviving spouse

Tenants in Common

Most spouses jointly own their property. One form of joint ownership is called tenancy in common. Spouses who jointly own property as tenants in common do not automatically receive full title to the property upon the death of the other spouse. The deceased spouse's joint interest in the property must go through the probate process just as if the deceased spouse had separately owned the property. The surviving spouse will continue to own her one-half interest in the property, so only the deceased spouse's one-half interest in the property will pass through probate.

Joint Tenants

The more common type of joint ownership for spouses is called joint tenancy, or in some states, tenancy by the entirety. Joint tenancy is a form of co-ownership that includes the automatic right of survivorship. This means that probate is unnecessary to convey the deceased spouse's one-half interest in the property to the surviving spouse. The surviving spouse under a joint tenancy, or tenancy by the entirety, automatically takes full title to the property upon the death of the other spouse. No probate or deed is necessary to vest full title in the surviving spouse.

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