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If there is a will of a deceased spoue but all the property is jointly owned ...

If there is a will of a deceased spoue but all the property is jointly owned ...

Full question:

If there is a will of a deceased spoue but all the property is jointly owned by both spouses does the property authomatically belong to the living spouse as long as there are no other heirs?

Category: Wills and Estates
Date: 04/07/2025
State: Michigan

Answer:

The following constitutes our information and belief. We cannot give legal advice, and recommend you consult a local attorney for all legal questions. We hope the following information is useful.

First, you must determine what type of "joint" ownership existed before the deceased's death. There are typically two types of "joint" ownership: (1) "Joint Tenants with Right of Survivorship" means that as soon as one owner dies, the entire ownership passes to the surviving owner - and in this case, the deceased could NOT pass on the ownership interest in a will because it automatically passes to the surviving owner (spouse) at the deceased's death (the surviving spouse now owns the entire property). (2) "Tenants in common" means that each (of two) owners owns a one-half undivided interest in the property - and in this case, the deceased owner's interest COULD be passed on via will.

You will have to look at the ownership deeds, or other documentation, to determine which type of ownership applies in the case of each piece of property.

There is an excellent resource for Michigan here:

http://courts.co.calhoun.mi.us/epic0000.htm

You can ask questions related to wills by emailing the address given on this web page. Since you will likely have more questions about your situation, you may find this page useful. Questions are answered through a cooperative effort of the Probate and Estate Planning section of the State Bar of Michigan, probate judges, attorneys and probate registers. If anyone can answer your questions, they can!

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

Does joint tenancy with right of survivorship override a will?

Yes, joint tenancy with right of survivorship does override a will. When one joint tenant dies, their interest in the property automatically transfers to the surviving joint tenant, regardless of what the deceased's will states. This means the deceased cannot dictate the distribution of their share through a will. It's important to check the deed to confirm the type of joint ownership.

Does a will take precedence over marriage?

Generally, a will does not take precedence over marriage. In many jurisdictions, if a person gets married after creating a will, their spouse may have rights to a portion of the estate, potentially overriding the will. This is often referred to as the spousal elective share. It's advisable to update your will after marriage to reflect your current intentions.

Does your spouse automatically become beneficiary?

In many cases, a spouse is automatically considered a beneficiary of certain assets, such as jointly owned property or retirement accounts with designated beneficiaries. However, this can depend on state laws and the specific terms of the will. It's important to review both the will and any beneficiary designations to understand the distribution of assets.

Does a spouse supersede a will?

In many states, a spouse can supersede a will, especially if the will was created before the marriage. Most jurisdictions grant spouses certain rights to inherit a portion of the estate, regardless of the will's contents. This is known as the spousal elective share. It's important to consult local laws to understand how this applies in your situation.

Can your spouse override your will?

A spouse cannot directly override a will, but they may have legal rights that allow them to claim a portion of the estate, known as the spousal elective share. This means that even if the will does not provide for the spouse, they may still be entitled to a minimum share under state law. It's important to understand these rights and update your will accordingly.