Q: Can a spouse automatically inherit the house even if she's not included on the house's title (in the state of Utah)?

A: This is a complicated question. In situations like these, details make a difference. Please tell your friend to have a consultation with an Estate Planning attorney. Many of us will talk to you for free.

Here are a few issues that can come up:

Prenuptial Agreement: This is one way to be sure you get what you feel is owed to you. If you don't sign one, there is always a risk that you won't be on the same page with distribution of assets after a 2nd marriage.

Where did your friends marry? If they married in a Community Property state, and then moved to Utah, any property owned prior to the marriage can remain separate property not accessible to surviving spouse in divorce or death.

Names on the Deed. This is definitely important. If both spouses are on the deed as Joint Tenants, and then if one dies, the survivor automatically owns the house. If they aren't joint tenants, then the decedent's share will need to go through probate. Whether or not they are joint tenants depends on the language of the deed and the date it was filed. The laws regarding joint tenancy changed this year, so new deeds vs old deeds will have different results.

Surviving Spouse Claim: Even when the decedent gives nothing to the surviving spouse, they have a claim they can make that gives them a significant portion of the estate at death.

Divorce: I have seen children of a parent with dementia seek a guardianship over their parent. They then used the guardianship to divorce the stepparent. This left the Stepparent with nothing. I don't recommend this action, but it is a risk of a second marriage.

Again, please consider talking to an estate planning attorney to identify options. If both spouses sign a trust, they can define what happens to the property and avoid probate.

A: If her husband is unwilling to add her name to the title, I agree with Mr. Prigmore's assessment that ensuring her inclusion in the husband's will is a critical step to secure her position regarding the home. However, additional legal mechanisms might provide greater security and peace of mind.

Encouraging her husband to consider signing a Transfer-on-Death (TOD) deed or creating a trust could protect her interests effectively. A TOD deed transfers ownership of the house directly to her upon his death, bypassing probate and ensuring she secures the house without court involvement, as long as the deed remains unrevoked during his lifetime. A trust could offer even more robust protection. For instance, if her husband were to establish a living trust and name her as the beneficiary of the home, it would ensure the property seamlessly transitions to her without probate. Additionally, this option can safeguard privacy and make the process simpler and more secure.

These options should be introduced as part of a broader conversation about estate planning. While addressing ownership of the house is essential, the discussion should also include ensuring clarity on the disposition of other assets, debts, and responsibilities that could arise. Consulting an experienced estate planning attorney can help navigate these complexities and design a solution that secures her future while respecting her husband's preferences and any familial relations.

I hope this helps.

Wes