Did you know that a home can’t pass to your spouse with an ‘or’ clause?

Many people are not aware that their interest in their home—unlike their bank account—does not automatically transfer to their spouse when they pass away. Similarly, most of us know that if you title your car in your name “or” in your spouse’s name, then either spouse may transfer the title to the vehicle to another person, even after one of them has passed away. However, for your home, to automatically transfer to a surviving spouse, there are specific requirements that must be met.

Idaho is a community property state. Under the law, each spouse has a 50% ownership interest in their home. When a spouse dies, his or her interest in their home passes to their estate—not to the other spouse. However, in 2008, the Idaho Legislature passed Idaho Code Section § 15-6-401 (Community Property with Right of Survivorship in Real Property). To create a right of survivorship in real property, you must have a deed prepared that states that the transfer creates an estate in “community property with right of survivorship.” If a husband and wife already own real property, they may deed the property to themselves, to be an estate in community property with right of survivorship.

Real property is your home, farm, or land. When real property is held by a husband and wife as community property with right of survivorship, it will automatically transfer and belong to the surviving spouse, upon the death of one spouse.

The practical effect of doing this is that when the first spouse passes away, rather than having to go through probate to transfer the deceased spouse’s interest in the home to the surviving spouse, all that has to be done is to record a Death Certificate at the courthouse to transfer the interest to the surviving spouse.

It’s a good idea if a husband and wife own a home, to prepare a Community Spouse Deed, which deeds the property back to themselves as an estate in community property with right of survivorship.

Getting a Community Spouse Deed in place can be part of a well-planned future that will make your life simpler in the long run.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2021