If my spouse dies what happens to our jointly-owned property?

Virginia permits spouses to hold property in a number of ways, some of which offer additional creditor protections unique to married couples. However, regardless of how the property is titled during the lifetime of the married couple and the additional protections it may afford, how property is handled when one spouse dies depends on several factors. Continue reading to learn more about the different ways in which property is handled following a spouse’s passing, then schedule a consultation with a skilled Fairfax estate planning attorney to learn how to protect your interest in the property and the interests of your spouse. if my spouse dies what happens to jointly owned property

Types of joint property ownership and their effect upon a spouse’s death

Tenants in common

If a deed doesn’t specify how ownership of a property is held, then the default is “tenants in common.” Tenants in common can own a property equally or in unequal parts if specified on the deed. If one owner dies, then their portion of ownership transfers to their heirs, not the other owner(s), even if it’s their spouse. If an owner dies with a will, then their will controls the distribution of their percentage of ownership. If an owner dies without a will, then intestate succession laws through the probate court will control who the property is passed to. This means that a spouse won’t automatically gain ownership over the property upon their spouse’s death and their interest will be up to the probate court and state intestacy laws. When the title is held as tenants in common, a tenant may seek a court order to have the property sold, even over another tenant’s objections. 

Tenants by the entirety

This form of ownership is reserved for spouses and provides an automatic “right of survivorship” upon one spouse’s death. This means that when one spouse dies, the other spouse automatically assumes the deceased’s spouse’s interest in the property without probate or any other legal action. Tenancy by the entirety also means that neither spouse can convey their interest in the property to someone else through a will or another legal instrument. Neither spouse may petition the court for an order to sell the property, except in the event of a divorce.

Joint tenants

This is ownership where the parties hold equal ownership but usually aren’t married. Joint tenancy can be standalone or with the right of survivorship. If the title was held as joint tenants with the right of survivorship, then upon the death of a joint tenant, the surviving tenant becomes the sole owner without additional legal processes — similar to tenants by the entirety. If the title was simply held as joint tenants without the right of survivorship, then the deceased’s ownership may be passed to their heirs. A joint tenant may petition the court to sell the property, even if the other tenant doesn’t agree to the sale.

Probate process in Fairfax

Probate courts verify the validity of a will and shared property deeds. The court is responsible for ensuring that all laws are followed and that the surviving spouse receives their legal allotment. If there’s a clash between what a property deed states and the terms of the will, the property deeds are followed first, then the terms of the will are negated by the specific joint ownership situations listed above. The surviving spouse is afforded additional allowances and rights through the probate court.


A surviving spouse is entitled to claim certain allowances, though determining which allowance is most beneficial can be difficult to do without the assistance of an estate planning attorney. 
  • Homestead allowance enables the surviving spouse to receive $20,000 from the estate. However, this allowance may be reduced or in lieu of anything received through other means such as the will, through intestate succession, or as an omitted spouse. 
  • Exempt property allowance allows the surviving spouse to claim $20,000 of the decedent’s tangible personal property. If there’s insufficient property to reach the $20,000, then the remaining amount can be paid in cash. This allowance can be sought in addition to anything received through the will or other claims.
  • Family allowance provides the surviving spouse the opportunity to receive an allowance from the estate while its administration is pending. This can be made in monthly installments of up to $2,000 per month for one year, or a lump sum payment of $24,000. The family allowance can be received in addition to claims against the estate or what the spouse will receive through the will.

Omitted spouse

When a decedent created their will before the marriage, the law assumes that the decedent intended to provide for their spouse in their will but simply never got around to updating it — they’re deemed an “omitted spouse.” In these circumstances, the omitted spouse is entitled to the share they would have received if their spouse died without a will. This interest can range from one-third of the estate if the decedent has children from another relationship to the entire estate if there aren’t children. However, claiming certain allowances can affect the amount that can be claimed as an omitted spouse.

Potential tax implications for joint property ownership after a spouse’s death

A surviving spouse might be responsible for capital gains tax on the sale of a jointly owned property, however, the amount they owe depends on how long after the deceased spouse’s death the house is sold. If the house is sold more than two years after the death, then the surviving spouse can exclude only $250,000 of capital gains. A surviving spouse might be eligible to increase that exemption to $500,000 if the property is sold within two years of the death and if other conditions are met. A skilled estate planning lawyer in Fairfax can help you take steps to minimize tax burdens after your spouse passes away.

Our Fairfax estate planning lawyers help protect everything you’ve worked for

Do you need help navigating the probate process in Fairfax or ensuring that you or your spouse are protected upon the other’s death? Contact Select Law Partners PLLC today at (855) 541-4867 to learn more about your rights.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

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