It is your second marriage and you live in the home she brought to the marriage. When she passes away, what right do you have to continue living there? Some assume that, because they were married at her passing, the surviving spouse can continue living in the home even after the owner/spouse passes. This is not necessarily true.
In almost all cases, the ownership of real property (i.e., land and the permanent structures on that land) is determined by the name(s) on the “deed.” A deed is the document you receive when you purchase a home or other real property. It is your proof to the rest of the world that the real property is yours.
Marriage, however, is a special relationship. If a married couple purchases real property, that property is typically owned by the “community” even if only one spouse’s name is on the deed. If the home is “community property,” each spouse owns a one-half interest in the land regardless of whose name is on the deed. That rule does not necessarily apply if one person already owns the property when the marriage occurs.
In a second marriage, it is not uncommon for one spouse to move into a home already owned by the other spouse. In that case, the home does not suddenly become property of this new “community.” Instead, the home will likely be the “separate property” of the spouse who originally owned the home. If that spouse passes away, the surviving spouse has no right to stay in the home unless given that right by the deceased spouse’s will or trust.
However, if that right is given, what affect will that have on the rights of the children from the deceased spouse’s first marriage? Will they lose the right to receive that property when their parent passes? Next column, I will address some ways the interests of both the surviving spouse and the children of the first marriage can be balanced.