Does a spouse with right of survivorship need to go to probate to sell their home?

QWhen a spouse passes away and the spouses owned their home with right of survivorship, should the surviving spouse go to probate to sell the house? — Joan

ANo, typically, when spouses own a home together and one dies, the house automatically becomes owned by the surviving spouse. But this result will depend on how the property was titled to the owners.

When people own property together, their ownership can be shared in three ways.

The standard, or default, type of joint ownership is called “tenants in common.” Each owner owns their portion of the property individually. The co-owners can each have identical shares, for example, each owning half, or they can agree to different proportions. When an individual owner dies, their share goes to their heirs, typically through probate.

Another type of co-ownership is called “joint tenants with right of survivorship.” With this form of ownership, each owner owns the entire property with the other owners.

This means that the remaining owners still own the entire property when one owner dies. The deceased’s heirs inherit nothing.

Much like this, but reserved only to married couples, is the form of joint ownership known as “tenants by the entirety.” In a strictly legal sense, the marriage itself owns the property, and if one spouse dies, the widow or widower becomes the sole owner of the property. The result is much like joint tenants with right of survivorship, but with other advantages like some protection from creditors of one of the spouses.

To figure out how a property is owned, you will need to look at the wording of the deed.

If the spouses’ names are followed by some indication of their marriage, the ownership is most likely tenants by the entirety.

If the names are followed by the words “joint tenants with right of survivorship,” then the ownership is just that.

Finally, if neither of these is specified, the home is owned as tenants in common. Usually, probate will be necessary only if a tenant in common dies.

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/ askpro or follow him on Twitter @GarySingerLaw.