Soddy Daisy, TN asked in Elder Law, Probate and Real Estate Law for Alabama

Q: Does a wife age 76 have a right to keep the home if spouse dies without a will and her name is not on the deed.

The home needs repairs and I can't do them without knowing if I have to go through probate

1 Lawyer Answer
Jack T. Carney
Jack T. Carney
  • Probate Lawyer
  • Birmingham, AL
  • Licensed in Alabama

A: Speaking in general terms only, a surviving spouse would have an interest in the home of a deceased owner, as the surviving spouse would have an interest in the estate. However, depending on the family situation and the value of the home it may not be a complete 100% interest. For example, if a person dies and leaves a surviving spouse and children from another marriage, the surviving spouse and children would split the estate 50/50. If the only asset were a home, then the children would have a 50% interest in that house.

There are certain rights designed to protect a surviving spouse. For example, there are several "statutory exemptions" that might allow the spouse to take some additional assets prior to any division. A spouse also has the right to remain in the home during an estate administration.

The bottom-line is that these issues are incredibly fact specific and it is usually worthwhile to consult with an attorney to ensure that you protect your interests. Good luck.

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