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Does a Surviving Spouse Actually Own the Home If Spouse Died Intestate?

Our office works with people who have recently lost a loved one and one of the most often asked questions is “Do I own the marital home?” 

If a Louisiana resident dies without ever executing a Will, they are said to have died “Intestate.” This means that Louisiana succession or probate laws will come into play and the state will decide what happens to your property. 

Many married residents in Louisiana that owned homes with their deceased spouse are rightly concerned as to whether they actually own the family home. 

I recently worked with a surviving spouse in Alexandria, Louisiana whose husband had died years prior. She wanted to make sure she owned the home that she and her husband bought together. They both worked extremely hard to buy the home and planned on living there until they both died. They had children over the age of 18.

The surviving wife wanted to know her options since he died rather young and it was hard to stay in the home after he had passed. She wanted to sell the home to downsize because it was too hard to live in the home.

She informed me that her late husband did not have a Will. They both thought the surviving spouse would own the property outright since it had been paid off. Unfortunately, that was not the case. I had to have an unpleasant conversation with her to explain that since he didn’t have a Last Will and Testament, that she would only own her “one-half” of the house outright and the other “one-half” would be inherited via “usufruct.” The usufruct over his ½ of the property would last until remarriage or death, whichever comes first. The children would inherit their father’s one-half in naked ownership. 

Needless to say, the surviving spouse was stunned to hear that the home she and her husband worked so hard to own was now partially owned by their children since he died without a will. 

It’s a common misconception by people in Louisiana that they own the property in full when a married person dies without a will in Louisiana. Many people are shocked when they learn that they must share ownership with their children or step-children. This can cause many family issues that can be avoided if you execute a Last Will and Testament. 

How Does a Surviving Spouse Get Ownership of the Home?

In this situation, the surviving spouse had to complete her husband’s succession in order to have the home retitled and the children named as the naked owners of her deceased husband’s one-half of the house with her owning the usufruct of his one-half. 

If the Children Agree:

She was lucky because the children agreed to sign their rights to his one-half of the home (their naked ownership) to her so that she could own the property in full and outright. Full ownership of her home gave her the ability to do anything she wished with her home without having to ask permission. 

Since her husband died without a will, the children’s cooperation was needed for her to get full ownership of the marital home. 

What if Children Won’t Give Up Rights to Property?

If your spouse dies without a will and the children become naked owners and won’t give up their ownership rights, then you have a problem. You need their cooperation to obtain full ownership or they could give you issues. 

An estate plan is the best way to take care of your spouse before you die. You will want to execute a valid Louisiana will to avoid any issues with family when you pass. You never know what will happen between your family when you are no longer there and you don’t want your surviving spouse wondering if they will be able to “own” the family home. 

Louisiana Succession Attorney Jerome Andries

Louisiana Succession Attorney

R. Jerome Andries

(318) 269-5857

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