Q: Upon my death, does my home transfer to my second wife under community property law or can I will it to my sons?
Probably a fairly common situation: My first wife and I bought a home together. The home was payed off before she passed away. After she passed, I remarried. However, I never added my second wife to the title of the home. While my second wife and my community property funds did not pay to purchase the home, those funds have certainly been used to maintain the home.
Does the home automatically transfer to my wife under community property law? Or can I, in my will, leave the home to my sons from my first marriage and grant my wife a qualified life estate?
A:
I will summarize your question as follows:
What rights does your new wife, have to your home after your death if it was paid for before the marriage?
The answer is a bit complex. The first question is how is the home currently titled. This can make a difference as to whether a widow will have any rights at all. I'll assume for the purposes of this answer that you are the sole record title holder.
Title 58 Oklahoma Statutes Section 331 states “[u]pon the death of either husband or wife, the survivor may possess and occupy the whole homestead.” In other words, your spouse can continue to reside in the property even after your death even if you left the property to another individual. This is different than a life estate. The homestead in Section 311 depends upon occupancy. If your wife moves from the property after your death and establishes a new homestead, then the disposition of the property is regulated by your Will, Trust, probate and real property law.
You asked a very good question because it cannot be easily answered in a post like this. I hope this gave you some idea of the complexity of your question. You should contact an attorney in your area to formulate the plan to achieve your goals.
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