Whose House Is It?  Surviving-Spouse Property Right

/ July 27, 2017

Despite the piles of paperwork many find the process of purchasing a house to be exciting. Watching the realtor slap a “SOLD” sticker across the sign, and having a set of keys slid across the closing table are moments many people remember fondly. Over time that house becomes a home. Memories are made as kids’ heights are measured on the doorways, and as remodeling and renovation projects are done so you can watch t.v. more comfortably in the basement now that it fits an entire home theater with surround sound, or the kitchen is expanded to have an eat-in space and this old house becomes your old house. The stress of securing financing, writing a check with far too many zeros, and enduring hand cramps from signing page after page after at closing slowly fade away. The folder the title company handed to you has been lost or maybe even tossed with the piles of junk mail that poured in each week. But without that, the question remains, whose house is this really?

Sure, you and your spouse may have lived there for your entire marriage and your now grown children may continue using it as their permanent address even though they’ve since moved out on their own. But what happens when your spouse passes away? Just because you still live there, does it really make it yours? …If only you could find that folder from the initial purchase countless years before, or figure out which floor of the government center the County Recorder (or was it the Registrar?) is on.

Under Minnesota law, title to real property can be held by more than one person in one of two ways- as joint-tenants, or as tenants-in-common. Unless “joint-tenants” is explicitly stated on the deed, the presumption is that title is held as tenants-in-common.

If the property is held between two people as joint-tenants, the surviving party can receive title to the property upon the death of the first party by simply filing an Affidavit of Survivorship along with proof of death with the county (Check out Jayne Sykora’s post on Affidavits of Identity and Survivorship more info on this). BUT if the property is held as tenants-in-common, the decedent’s interest in the property will pass through as an intestate asset.

If the property was owned by both spouses as tenants-in-common, or if the surviving spouse was not on title to the property at all, the decedent’s interest will transfer as follows:

Homestead

If the property at issue was the decedent’s homestead, Minn. Stat. 524.2-402 provides decedent’s interest would pass through intestate provisions as follows:

  • If there are no descendants of the decedent, all to the decedent’s surviving spouse.
  • If there are surviving descendants of the decedent, then to the spouse for the spouse’s lifetime, with the remainder interest passing to the decedent’s descendants.

Please note that because of Minnesota’s marital interest laws in real property, these provisions for the descent of Homestead apply even if your spouse had a will or trust that disposed of the property in another manner if the will or trust does not contain spousal consent in writing.

Non-Homestead

If the property is non-homestead, Minn. Stat. 524.2-102 applies and provides the following to the surviving spouse:

  • The entire intestate estate if there are no surviving descendants of the decedent or all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

or

  • The first $225,000, plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, or if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

Now after reading this you might be thinking, well it’s really not that bad. Our kids were going to get everything when I die anyways, so why not just let them have the remainder interest or own it with me now… but remember, there just may be some strings attached.

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