QUESTION
Does my mother have any claim to a property that my father and I own, if her name is not on the title? How?
Asked on Jul 15th, 2015 on Estate Planning - Washington
More details to this question:
My father and I own a property together. He is married to my mother, but she is not on the property title, only my father and myself are. If my father stated in his will that I'm the sole owner of that property; upon his death does my mother have any claim to the property if they were married at the time of death?
12 ANSWERS
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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A spouse at the time of death has the right of renunciation under the will. This gives the spouse the right to 1/3 of the assets in the estate regardless of the terms of the will. The 1/3 is a sum and can be taken from any asset(s) in the estate. If the property is owned jointly by you and your father the it will not be part of his estate if he were to predecessor you. The title would pas to you directly outside of his estate as the surviving joint tenant.
Answered on Sep 01st, 2015 at 9:46 PM
If you live in a community property state such as California [during marriage all earnings of each spouse is community property except for income coming from separate property property owned before the actual marriage date or inherited property are personal/private property, but if community funds used during marriage to maintain those properties commingling- property could be turned into community property] and the property was purchased with community assets, then she is entitled to at least one half of the community assets, no matter what the Will says [some states prohibit the disinheriting of a spouse, but not California]. You need to look up all the paperwork as to the property and see who does have title; you may have to speak to a local real estate attorney to see if your mother has any legal interest. You may also need to deal with the family dynamics that currently exists if both you and your father want to cut your mother out of the property, especially if it is the family home. How would you feel if the house you had lived in for years goes upon your husband's death to one of the kids who kicks you out?
Answered on Sep 01st, 2015 at 9:46 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Maybe, but not having any documents to examine nor any history as to how you and your father came to have names on same title to property and not your mother, I don't know. You are advised to seek the advice of a probate attorney.
Answered on Sep 01st, 2015 at 9:46 PM
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If the property was purchased using community funds then it is partially hers, unless she signed a quitclaim deed giving up her interest. I urge your father to speak to attorney about the specifics. This is opinion is solely based upon the facts presented in the inquiry. Additional facts may be important and may change the analysis. If you are uncertain, seek legal counsel. We are not your attorneys. This answer is being offered to assist you in determining if you need to retain legal counsel to assist you, not to resolve your issue through an email inquiry.
Answered on Sep 01st, 2015 at 9:46 PM
From your description, it seems you and your father own the property as tenants in common, not as joint tenants with full rights of survivorship. As a tenant in common, your father owned an undivided ? interest in the property. That interest was an estate of inheritance. As his wife, your mother has dower in his interest in the property after his death. This means she may elect to have a life estate in his interest. After she dies (assuming his Will leaves the property to you), you will be the sole owner.
Answered on Sep 01st, 2015 at 9:46 PM
If your father's will specifically states that he is transferring his share of the jointly-owned property to you, you will own it free and clear. However, if the will isn't specific enough, you and your father own the property as "tenants in common", and your mother receives the "remainder" or "residue" of the estate, she could have a claim. If your parents live in a community property state, she may also have a statutory claim.
Answered on Sep 01st, 2015 at 9:46 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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She might have a community property interest in the property. Did he ever use community property funds in connection with it?
Answered on Sep 01st, 2015 at 9:46 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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If the property was acquired during your parents' marriage, there is a legal presumption that it is community property between them.
Answered on Sep 01st, 2015 at 9:46 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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She is entitled to a "spousal elective share," up to one-third of his estate depending on how long they've been married. The spousal elective share applies to a spouse regardless of what the will says, and how property is owned. She has to "elect against the will," and petition the court to get her spousal elective share.
Answered on Sep 01st, 2015 at 9:46 PM
Edwin K. Niles
The question really is whether community property went into the purchase. If so, Mom could make a claim, but she would have a hard time proving a claim. If the deed says, ?as joint tenants? the property would go to you almost automatically; you would only have to record an affidavit of death of joint tenant.
Answered on Sep 01st, 2015 at 9:46 PM
Thomas Edward Gates
She may have if the community funds were paid to purchase the property, pay taxes and insurance, and to maintain it.
Answered on Sep 01st, 2015 at 9:45 PM
Commercial & Bankruptcy Law Attorney serving Powell, OH
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Ronald K. Nims
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No, your mother has no claim to real estate that is jointly owned by you and your father when your father's will directs that the property will go to you. If your mother and father are still married, she has a right to live in the marital home and a right to part of your father's other property but not to his real estate.
Answered on Sep 01st, 2015 at 9:45 PM