Hopkinsville, KY asked in Divorce for Alabama

Q: In a common law marriage in Al. If a house was giving to the husband as a gift from his parents and then he passes away

Does it revert back to his parents or his common law wife? Her name is no where on any papers for the house.

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1 Lawyer Answer

A: Let me make sure I have the facts: A man and a woman were married in Alabama (by common law) and during the marriage a house was deeded to the husband by his parents. Then, the husband died. The question is what right does the wife (now widow) have to the house. Here is the answer: the house is part of the estate of the husband. If the husband died with a will, then the will controls what happens to the house -- subject to something called the Spousal Elective Share. If the husband died without a will, then the house will pass as part of his estate -- according to the law that decides who gets what when there is no will. That law under Section 43-8-41 works like this: If there are no surviving children of the husband and no parents living, she gets it all; if there are parents living, but no children of the husband living, she gets the first $100,000 plus half of what's left; if there are children that are all her children too, she gets $50,000 plus one half; if there are children that are not hers, she gets one half. You should consult a lawyer on this. Also, don't confuse this with what happens to property in a divorce -- altogether different set of rules.

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