What Happens To Your House When Your Spouse Dies?

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The death of a spouse is difficult, to say the least. It can leave a lot of uncertainty in its wake and if you owned property together, that only adds to the confusion. Any property the deceased owned will become part of his or her deceased estate to be inherited by the surviving spouse or a named beneficiary. The nature of your marriage contract, how the ownership of the home is registered, and the deceased will (or lack thereof) also influences how the property is wound up. You can be married in community of property, out of community of property with accrual or out of community of property excluding accrual. Furthermore, a home can be registered with one of both individuals as the owners.

 

In community of property

When you are married in community of property you and your spouse share everything you own 50-50. It doesn’t matter if you owned it before or after the marriage, your spouse now owns half of it. This includes any property you bought before or after your marriage. When a spouse passes away, the surviving spouse still owns half of everything, though the joint estate needs to be dissolved as it cannot exist with only one owner.

 

If the deceased named his/her spouse as the sole beneficiary, things are fairly simple as the surviving spouse now owns everything and there is just paperwork involved. Note that we are not considering

the creditors or any other claims placed upon the deceased estate in any of these situations though this could further complicate matters as a creditor’s claim comes before that of a beneficiary.

If the deceased name another individual, like a child or grandchild, as the beneficiary, half of the property will now belong to him or her and it has to be registered as such.

 

Should there be any dispute regarding the named beneficiary or the homeownership, the courts can weigh in and determine what should happen, whether it be that the will be honoured or suggesting that one individual buys out the other. These are just two possible scenarios. If there are no disputes, the new owners of the house could still decide among themselves that one want to buy out the other, or they want to sell the property and split the proceeds.

 

If the deceased passed away intestate, without a will, the surviving spouse will most likely inherit the 50% of the property in question.

 

Out of community of property with accrual

In this marriage regime, what’s mine is mine and what’s yours is yours, but anything bought and added to our wealth after marriage, is shared 50-50. If the deceased purchased a property before he/she got married, then that home will become part of the deceased estate in its entirety and the deceased’s will determines what happens to it. A property purchased after marriage, however, goes much the same route as the property in community of property and the deceased can only bequeath half of it in his/her will.

 

In the absence of a will, the pre-marriage property will probably still be inherited by the surviving spouse, but it is important to remember that the children of the deceased are also in line to inherit, and the Intestate Succession Act will determine exactly what happens.

 

Out of community of property excluding accrual

What’s mine is mine and what’s yours is yours and it stays that way even after the marriage takes place. When your marriage regime excludes accrual, the manner in which the property is registered and owned becomes important. If both spouses are registered as the owner, they both have a claim to it, similar to the previous two examples. If only one spouse is the registered owner, however, that property becomes part of his or her deceased estate and it is inherited by whomever he or she names as the beneficiary. If that beneficiary is someone other than the surviving spouse, there is little you can do.

 

The home you share with your spouse is probably one of the most special places in the world. At Karis, we can help you find your perfect forever home and we strongly suggest that you protect that home by clearly stating what you want to have happen to it should either or both of you pass away.