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Would the ex-husband become the surviving spouse in this situation?

354 views 27 replies 11 participants last post by  Retiredguy  
#1 ·
Hi,

Would the ex-husband in the following situation become the surviving spouse?

A couple bought a house together. They paid off the mortgage long time ago. For some reasons, the husband borrowed secretively against the house.
When the wife found out, she decided to take on the mortgage provided the house is transferred in her name.

As per her, the house has been transferred in her name with the help of a broker and a lawyer. In her Will, she has expressed her wish that the value of the house should be divided between her children, nothing should be given to the husband. The husband, however, is still living in the house (they are not divorced legally).

I suspect that if she died before the husband, the house would automatically be transferred to the husband, irrespective of her will.

Thanks
 
#2 ·
I don't know but since they aren't divorced I would think they are considered together. AI says:
No, a surviving spouse does not automatically get the entire estate if a will gives it to the children, but they may have a legal claim to a portion of the estate, depending on the province's wills and succession laws. Even if a will is clear, a spouse can challenge it to claim a "supportive share" or an elective share to ensure they are not left without adequate financial support.

I remember when my father passed away there were a lot of questions about when my parents divorced and if anyone else could have been considered supported in some way that may want to claim part of estate (Girlfriend, Business Partner). I know of others married couples that live together but in separate rooms with no real relationship anymore and others that have put a house in only one of the spouses names for protection against the other spouse (Business Risks or Gambling Issues). I think both of those could easily be argued.

So my guess is he would be entitled to something and perhaps all of it, sounds like they need a lawyer to draw up something that prevents that from happening.
 
#3 ·
Thanks for the detailed question — you're asking about whether the ex-husband (or more precisely, still-legally-married-but-separated husband) would become the surviving spouse and inherit the house, even though:
  • The wife claims the house was transferred solely into her name.
  • She has a Will that explicitly excludes her husband and leaves the house to her children.
  • The husband is still living in the house, but they are not divorced.
Let’s break this down carefully:

🔍 Key Legal Questions:
  1. Was the house truly transferred solely into the wife’s name?
  2. How was the house titled? (Joint tenancy? Tenancy in common? Sole ownership?)
  3. Was there a valid Will?
  4. Are they still legally married?
  5. Is the jurisdiction a community property state or a common law state?
  6. Does the surviving spouse have a right to an "elective share" or "statutory share"?
✅ Let’s Analyze Step-by-Step:
1. Ownership Title of the House

You said:
“As per her, the house has been transferred in her name with the help of a broker and a lawyer.”
That suggests the house is now solely in her name, not jointly owned anymore.

✅ If that’s true, and the deed was properly recorded at the county registrar, the husband no longer has title to the house.

🛑 However, if the deed transfer wasn’t completed or recorded correctly, or if the husband never actually signed away his rights (depending on the jurisdiction), the house may still be considered joint property — or he might still have a marital interest in it.

2. Will vs. Spousal Rights

You said:
“In her Will, she has expressed her wish that the value of the house should be divided between her children, nothing should be given to the husband.”
That’s clear in intention — but here’s the catch:

⚖ In most jurisdictions, a spouse cannot be entirely disinherited without their consent. Even if a Will excludes the spouse, the law often allows the surviving spouse to claim an “elective share” or “statutory share” of the estate (typically 1/3 to 1/2 depending on state law).

So, even if:
  • The house is solely in her name
  • The Will gives it to her children
➡ The husband may still be able to override the Will and claim a portion of the estate — possibly including part of the house — unless there was a valid prenuptial or postnuptial agreement waiving those rights.

3. "Surviving Spouse" Status

You asked:
"Would the ex-husband ... become the surviving spouse?"
📌 Since they are not legally divorced, he would be considered her surviving spouse under most laws, even if they are estranged or living separately.

Only a legal divorce decree terminates spousal rights.

4. What Happens if She Dies Before Him?

If:
  • The deed is legitimately in her name only, and
  • The Will gives the house to her children,
Then the house does not automatically transfer to the husband unless:
  • It was still in joint tenancy with right of survivorship, or
  • He exercises his spousal elective share rights (see above), or
  • The law in that jurisdiction provides an automatic spousal homestead or dower right (in some states).
🔚 Final Summary:
If she dies before him:

  • âś… If the house is fully in her name, and the Will is valid, the children would inherit it as stated.
  • ❌ But since they are still married, the husband is a surviving spouse, and he may:
    • 🏛 Be entitled to a portion of the estate via elective share laws,
    • 🏠 Possibly have a right to reside in the house (homestead rights),
    • âť—Complicate the children's inheritance unless legal planning was done (e.g., trust, waivers).
âś… Recommended Actions:

If this is a real scenario involving your family or client:
  1. Check the title/deed — is it truly in her name only?
  2. Verify the Will's validity.
  3. Consult a probate or estate attorney in the relevant state/country to:
    • Review elective share laws,
    • Possibly recommend a revocable living trust to bypass probate and minimize spousal claims,
    • Discuss legal separation, postnuptial agreements, or other planning tools.
Would you like to tell me what state or country this takes place in? I can give more specific legal insight based on the local laws.
 
#4 ·
Hi,

Would the ex-husband in the following situation become the surviving spouse?

A couple bought a house together. They paid off the mortgage long time ago. For some reasons, the husband borrowed secretively against the house.
When the wife found out, she decided to take on the mortgage provided the house is transferred in her name.

As per her, the house has been transferred in her name with the help of a broker and a lawyer. In her Will, she has expressed her wish that the value of the house should be divided between her children, nothing should be given to the husband. The husband, however, is still living in the house (they are not divorced legally).


I suspect that if she died before the husband, the house would automatically be transferred to the husband, irrespective of her will.

Thanks
I dealt with a similar but not quite the same situation with my parents properties. I actually had some advice from a former lawyer on here, then went to our lawyer to set everything up properly.

The simple answer to this complicated question is the Land Titles will supersede the will. If the house is truly registered with land titles as the wife being the sole owner, and the will states her share should go to the kids, it should go to the kids.

However, I hope that the she got her husband (because they are not legally an ex in the court of law) to sign off on this somewhere during the process. Though it should pass to the kids if the above is true, he could still contest it. It doesn't mean he will win, but she will be dead, and it will depend on the how well the situation is documented.

In my specific situation, one of the parents wanted everything to transfer to the kids instead of the other spouse. That was what the will said. It was a Tenancy in Common which she had change. However, as her POA and PD, I knew what her real intent was, which was when both her and my dad passed that the kids would be remembered, however she didn't want the chance that if my dad remarried, his new wife would get anything. We knew my dad wouldn't get remarried he was over 80 at the time my was ill. So we couldn't change the will because she was incapacitated, but did have POA to change the title Joint Tenancy. I had to get our lawyer to agree to change the title and legally have all of the beneficiary's declare we wanted the house to transfer over to my dad and not accept our inheritence. Though different scenario, the legal part was the Land Title over rode the Will (which in our case was different), in your friends case it's the same, and the second part of having all potential beneficiaries sign away their rights solidified it. Our lawyer said, she didn't want us to be in the scenario of have the land title over ride, but then there were claims against the estate. So in your friends case, if she gets declaration from the husband, that should solidify it, unless he wants to get messy. Then I don't know what to say.

It's automatic in theory until someone tries to fight it.
 
#5 ·
It may depend on the Province. It may depend on the will. I know that BC is different that a few other Provinces where we have lived.

As executor of a will (BC) the will significantly reduces an estranged son inheritance.. Written by a lawyer months prior to the person's death with justification as to why.

The lawyer said it is possible that the estranged son, even though he is getting some monies, may contest the will. Why...in the hopes of forcing the estate to arrive at a better division of the estate to his benefit. Appartently he has six months to do so.
 
#6 ·
We may all want to believe, including the original poster, that we are talking about an ex-husband here but unfortuneately we are not. Not only did she not get around to divorcing him but she didn't even get around to throwing him out of her house. So from now on we need to keep in mind the reality that he is actually her legal and surviving spouse.

So yes, if he wants to put up a stink and contest the will, I have no doubt he will win a minimum of 1/2 the house. One cannot give away in their will, what a person could obtain from a divorce. In other words, he had a right to 1/2 the house and therefore she did not have any right to give that amount away in her will. If he does not contest the will then the land registry office will change the title of the house according to her will.
 
#7 ·
I think a key part is what is on the current tita,. If it’s just the wife, then that superseded the will.

in my parents case, they were married, and they did change the title (long story there). It was the fact that they changed the title, that my mom could will her share to whom ever she wanted. when we went to see the lawyer, they agreed that changing the land title back to joint with my dad the land title change would supersede the will. there were other factors, but i think if the title was changed and the huband agreed (you are right they are still married), then it should transfer to the kids. You also right that he can contest
 
#9 ·
As above. UNless there is a contract properly executed and witnessed in which the husband signs away his interest in the property. Land registry should not change title out of the deceased name without the court ruling on this. As Optsy says the husband is in the drivers seat. The fact that he has lived there through the period is central to the defence.
 
#15 ·
What interest does the husband have in the property if the home is solely in her name and she pays the mortgage ?

At that point the husband is just a roommate, tenant, or boarder as per ownership of the home.
 
#10 ·
From what I have read contesting a will in Ontario is not an easy task and is seldom successful.

There are defined requirements to overturn someone's express wishes in a will which are mostly related to fraud or undue influence factors that must be well documented in court.

It it kind of pointless to have a will if it is easy to overturn in a court.
 
#11 ·
Actually it is not difficult at all. In most cases a final outcome is not the final objective of the person filing the dispute. Their objective is usually to convince the current heirs, listed in the will, that it is in their best interest, financially and timewise, to settle this case out of court. A settlement that will obviously cost them some money.

In most provinces all a claimant has to do is convince a judge that they have a legitimate complaint or dispute. At this initial stage they do not need to show much in the line of evidence, only that they deserve their day in court. Once the judge agrees with that, which happens fairly easily, the problems for the current heirs begin. You see, estate law dictates that the legal fees of BOTH the plaintiff and the defendant are to be paid out of the estate proceeds. In other words all the plaintiff has to do is convince the defendants (heirs in the will) that he will drag this case out so long, and make it so costly in legal fees, that a settlement will be much cheaper and of course quicker for them. Unless emotions run too high, most logical people will move to settle, once the interim court decides that this case should go to trial. Who wants the lawyers to inherit everything, which they very well might if this case goes to court and drags on.

In this particular case, it would be a cake walk for the husband to get a judge to agree that this dispute should be heard in court. After that it costs him nothing and it costs the final heirs a lot.
 
#13 · (Edited)
I doubt a lawyer would even accept the husband's case without some documentation that is relevant to overturning the will.

One also wonders why her lawyer would create such a will excluding the husband if it wasn't legal to do so.

Also in Canada, the losing party pays the legal fees of both parties as a deterrent to nuisance civil suits, unless there was compelling evidence to support the lawsuit.

Sure you can threaten people to take them to court in a case without merit just to jerk them around but if you lose you will pay the legal costs for all involved.

We had a family member involved in such a case where his father passed away and his mother inherited a home and other assets.

She remarried and changed her will to leave everything to her new husband. When she passed the new husband received everything.

They contacted a lawyer and were told.......too bad so sad. The new husband was a decent guy and gave them a small share of some assets but kept the home.

Years later when he passed away he bequeathed the home and all his assets to his own family.
 
#17 ·
Also in Canada, the losing party pays the legal fees of both parties as a deterrent to nuisance civil suits, unless there was compelling evidence to support the lawsuit.
That is not the way it works for estates. I wish it was but it isn't.

That is why most lawyers will tell you that they tend to make way more money on poorly designed wills and estate plans then they ever make creating good ones. Lawyers love this stuff. It is very lucrative.
 
#14 ·
Consider starting with the opinion and advice of a professional based on all of the facts (there may be some, or some small nuances that you have not been made aware of) by an experienced estates lawyer.

It could well be that is where the person may end up. So why not start there?
 
#19 ·
What interest does the husband have in the property if the home is solely in her name and she pays the mortgage ?

At that point the husband is just a roommate, tenant, or boarder as per ownership of the home.
In this case, since they are not legally divorced, the husband is will never be a roommate or tenant without proper legal documentation. The point they could become a roommate or tenant is when they are legally divorced.

Yup......and the initial consultation may be free but if it is decided to move ahead with the case the lawyer will expect some payment upfront before proceeding further.
Not necessarily. If the lawyer thinks there is a good chance of winning, they can do it on a pro bono. They will take more in fees, and those fees can go against the estate.

Why do you there are charities that will hire a lawyer to get more of an estate? There are at no risk to do so.
 
#23 ·
In this case, since they are not legally divorced, the husband is will never be a roommate or tenant without proper legal documentation. The point they could become a roommate or tenant is when they are legally divorced.



Not necessarily. If the lawyer thinks there is a good chance of winning, they can do it on a pro bono. They will take more in fees, and those fees can go against the estate.

Why do you there are charities that will hire a lawyer to get more of an estate? There are at no risk to do so.
Pro bono means “for the public good” colloquially it means free or without charge.

I think you meant “on contingency” …contingent on winning.
 
#21 ·
Not to throw any wrenches into the gears, I wonder if a simple solution to these 50 shades of grey would be for house title to be changed to 99/01 Tenants In Common where it is clear the estranged (but legal) husband only has a 1% beneficial interest in the home.

Such title would need to be accompanied by a relatively simple agreement that on the death of one of the TIC owners, all ongoing property costs must be borne by surviving spouse until such time the property will be: 1) sold on the open market at a price based on some formerly appraised basis, or 2) a first right of refusal by the surviving owner to buy out the property at market value (appraised price).
 
#22 ·
Not to throw any wrenches into the gears, I wonder if a simple solution to these 50 shades of grey would be for house title to be changed to 99/01 Tenants In Common where it is clear the estranged (but legal) husband only has a 1% beneficial interest in the home.

Such title would need to be accompanied by a relatively simple agreement that on the death of one of the TIC owners, all ongoing property costs must be borne by surviving spouse until such time the property will be: 1) sold on the open market at a price based on some formerly appraised basis, or 2) a first right of refusal by the surviving owner to buy out the property at market value (appraised price).
In Ontario, the court will toss the above if he says he only signed under duress. There is a higher bar to enforce this family law stuff.

At the end of the day it will be a “he says, she’s not hear to tell her side” with the kids coming across as vindictive. She should have tossed him if she really meant it.
 
#25 ·
Any lawyer doing the transfer had a duty of care to understand that this was not a arms length transaction and that the wife was assuming the debts of the husband and to inquire why this was occurring; a red flag then requiring the lawyer ensure not only that title transferred properly but that a release was signed by hubby to exclude the house from any future marital division or wills claim.

And that release should have been clearly referenced in her will.

Pretty basic stuff.
 
#26 · (Edited)
Good point and also if the husband borrowed against the home without her knowledge or approval, it may be considered as his "share" in the proceeds (or at least part of his share) of the house if the matter ended up in court.

We also don't even know what the home is worth. It could be worth a million dollars in a big city or $100k in a village in rural Saskatchewan.