In a marriage, assets of a husband and wife may be jointly owned such that each considers the marital possessions his or her own. Alternatively, the husband may have chosen to maintain separate property, owning land or other assets in only his name. Estate planning, lack of estate planning or even state law may determine the disposition of a husband’s ownership interest and the interest a wife will acquire after his death.
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When a husband and wife acquire title as joint tenants with rights of survivorship, as established by their deed, then upon the death of the husband, the property automatically transfers to the wife as survivor, without the necessity of probating a will or administering an estate. Joint ownership with survivorship provisions may be referred to in some states as "tenancy by the entirety" and in those states, it is restricted to married couples only.
Last Will and Testament
State laws do not allow a husband to disinherit a wife in his will absent a premarital agreement to the contrary. If the wife is not mentioned in the will, she may contest the will and should, in all likelihood, be awarded a portion of the estate of her husband. Whether that portion includes land or other assets would be decided by the court hearing the case. On the other hand, a husband may choose to leave all his land, as well as other assets, to his wife to the exclusion of his children. As long as the court does not allow the will to be invalidated by the children in a will contest, the wife will acquire all assets awarded her under this will. State laws are subject to change, and the wife should consider obtaining legal assistance in these situations.
If a husband owns land, or an interest in land, that is not subject to survivorship rights, and dies without a will, state laws of intestate succession govern the disposition of his property. Laws may vary from state to state as to the method of inheritance, but, generally, the wife is recognized as the primary heir or beneficiary to the estate, children being next in line to be followed by parents and then siblings. State laws may also vary depending on family structure. In some states, the wife will inherit all of the estate if she has been the only wife of the deceased, and the couple had children only with each other. If the husband had children by a former wife, the surviving spouse’s share may be limited, increasing the amount to be distributed to the children. The value of a parcel of land as well as state intestacy laws may determine whether land of a deceased husband becomes the sole property of the wife or jointly owned with other heirs.
A husband may have chosen to place the land in a trust for the benefit of his wife upon his death. A trustee will have been appointed to manage the trust and will generally be in charge of incremental distributions from the trust to the wife. The terms of the written trust agreement, as well as the authority given the trustee under the trust, may determine whether or not a parcel of land is distributed from the trust directly to the wife. Other beneficiaries may also have been named who will benefit from the trust and if the trust agreement so provides, the land may be sold to fund the trust for monetary distribution to the beneficiaries.
References & Resources
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