Can I keep my house after death of my spouse?

Q:Iam concerned about what will happen to my house if my husband passes away. Will I be allowed to keep the house and make mortgage payments, or sell it if I want to? — Nancy

A: In most cases, you would be allowed to either keep the house, making mortgage payments, or sell it. Many factors affect this, though — most importantly, how the home is titled.

Most married couples own their homes in a special type of ownership reserved just for spouses known as “tenants by the entirety.” To explain the significance of this type of joint ownership, however, I need to first explain the two other options that are available.

The default type is called “tenants in common,” in which each co-owner owns his or her part of the property individually. Typically, these portions are equal but, if specified on the deed, they can be different, such as 80 percent to one owner and 20 percent to another. With this type, there can be many owners, and when each owner dies, his or her portion goes to any heirs.

Another type of ownership is called “joint tenants with right of survivorship.” This is like “tenants in common” in many ways, except that when each owner passes away, the portion goes to the other owners instead of heirs.

This brings us to “tenants by the entirety,” which is similar in many ways to “joint tenants with right of survivorship” except that it is limited to a married couple. It has been said that the marriage becomes the owner of the property with this form, automatically making the surviving spouse the owner of the property. There are other advantages to owning property this way such as money judgments against one spouse not forming a lien against the property — unlike with other forms of ownership where judgments against one owner could attach.

The easiest way to tell whether you own your home this way is by looking at your deed. If both of your names are listed along with an indication that you are married, then you are all set.

If the property is in his name alone, the law will still provide you with certain protections. However, many factors come into play such as whether you have children, their ages, and what is set out in his will, if he has one. You should review your situation with a qualified estate planning professional now because any discrepancies are much easier and less expensive to deal with while you are both alive.