Q: My mom and stepdad were never married but purchased a home in both names with rights to survivors , mom dies, he never
Goes through probate so both names are still on deed. He’s getting remarried, the house was always to go to us kids if something happens to him. Is this new marriage going to change this?
A: By law, the house is solely his, regardless of whether he retitles it into his sole name. If he dies without a will, his stepchildren (unless legally adopted) will not inherit any part of his estate. The only way you as stepchildren can inherit property of his estate is if he drafts a will and specifically names you to receive something. As for his future wife, if she survives him and is not happy with what he has left for her in his will, she has the right to exercise her statutory election and take one-third of his estate, regardless of how his Will reads, which means other heirs or persons entitled to receive property under his estate end up having their shares reduced by the elective share of the surviving spouse. Finally, if your stepfather sells the house or adds his new wife’s name to the house as joint owner, then the house will never become part of his estate subject to distribution regardless of what his will says.
A: It would be wise to have counsel review the deed and run a title search, because laypeople often are mistaken in their understanding of joint tenancy with rights of survivorship (JTWROS). But, if the property was truly JTWROS, it passed outside of probate to your mother's significant other (who is not your step-father as far as the law is concerned). The property belongs solely to him, and you have no interest in it unless he wills it to you and his new wife does not assert spousal share against it.
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