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What happens if my spouse dies, has a will leaving the house to children, yet we are both titled owners of our house?

What happens if my spouse dies and has a will leaving the house to his/her children, however we (both spouses) are both titled owners of our house?When a married couple owns a house, they ordinarily take such property as tenants by the entirety. In simple terms, they are joint tenants with rights of survivorship, meaning that if one spouse dies, the surviving spouse takes ownership of the entire property (i.e. fee interest) by this right of survivorship. This scenario is one of the instances by which property passes to another “by operation of law.” The similar situation would hold true if you were a joint account holder on a savings account. By operation of law, the surviving joint account holder would receive the entire account upon proper documentation provided to the financial institution.

In the scenario presented here, a spouse cannot leave his/her house to his/her children if he/she owns the property as a joint tenant with the surviving spouse. This joint tenancy is an example of a testamentary substitute, therein this asset passes outside of probate and the terms stated in the will. This is why it is always important to have consistently in terms of ownership of property and assets and how they are able to be bequeathed in the terms stated in the will.

Should you have any questions and require the services of an experienced New York Wills and Estates Attorney, please contact the Law Offices of Michael W. Alpert at (631) 225-4603 or