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Friday, November 5, 2010

My husband owns the house - what happens if he dies?

This is a question recently asked by a reader, that I'd like to answer here. I'm glad this question is being asked while both parties are still living and there is time to make changes, if necessary.

The facts seem simple, but there are many more facts that I would want to know in this situation. First I would check the title to see exactly who owns the house. Is the wife correct in her belief that her name is not on the title? Is the husband the only owner or is there someone else on title as well? This sometimes happens when a property is handed down through a family; the husband's siblings might well be on title too.

Assuming that the husband is the sole owner of the property, I would then want to know whether the parties were legally married or common-law partners, and I'd want to know which province or territory they live in. A couple of provinces, including Alberta, still have Dower rights which give a surviving spouse a life interest in the home when the spouse dies. Dower rights don't apply to common-law couples.

I would also want to know whether the husband has a valid Will, and if so, what he has said about the property in his Will. If he is the only owner of the house and he leaves his entire estate to his wife, then the house will simply be transferred to her. It could be, however, that if the husband is in a second marriage, he might plan to leave the house to his children of the first marriage. Or he might have created a trust for his wife, which would allow her to live in the house but not sell it.

Tied in with the issue of the Will are any beneficiary designations the husband might have made, such as RRSPs and life insurance, that might impact the wife's case if she were to bring a lawsuit claiming a larger part of the estate. Spouses are always included in the group of people with an automatic right to contest an estate if he or she is not adequately provided for. Her application would also be affected by rival claims to the estate such as those of minor or handicapped children.

Another fact that might impact the fate of the house is the husband's debt situation. Does he have a mortgage, and if so, is it life insured? Does the house secure a line of credit or a business loan? Is there enough money in the estate to pay all debts he leaves behind?

A simple question, perhaps. But a simple answer? That's not so easy.

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