Can a Surviving Spouse Sell the House?

Can a surviving spouse sell the house? This reader wants to know if they can sell the property if they’re on the house deed but not the mortgage.

Q: My wife passed away last year and she was on the mortgage to the home and on the title to the house deed. I’m not on the mortgage but am on the house deed. Do I have the right to sell the property? And if so, what must I do to do so?

Can a Surviving Spouse Sell the House?

A: Let’s start by saying that owning a home and having a mortgage on a home are two separate transactions. When you buy a home, you can buy it without ever having a mortgage on it and you’d own it free and clear.

Most home buyers don’t have enough cash on hand to be able to buy a home, so they need to go to a lender and borrow money. When you have a lender, you still own the home. It’s just that you now own a home that is subject to the rights of the lender to be repaid if the home is sold or to take control of the property and sell it if you fail to make your mortgage payments.

As long as you and your wife owned the home as joint tenants with rights of survivorship, you should be set. Joint tenancy gives the surviving owner automatic ownership of the home upon the death of the co-owner. Most people end up buying homes as joint tenants. But in many states, married couples buy homes as tenants by the entirety. Even with this type of ownership, the basic premise is that the couple owns the home as joint tenants with rights of survivorship. (When you own the home as tenants by the entirety, you get certain benefits that protect the home against one of the spouse’s creditors.)

The Difference Between Joint Tenancy and Tenants in Common

There are times, however, that couples may own a home as tenants in common. Frequently, you’ll see tenants in common when they buy a home and the document talks about one owner owning a 75 percent share of the home and the other owner owning 25 percent. So, if you see title to a property which lists different owners having a percentage interest in the home, or the deed states that the owners hold title as tenants in common, then when one owner dies, that owner’s share in the home goes to his or her estate.

Once in the estate, the property then goes to whomever is designated in the will of that person or as required by law. Sometimes, a deed must state that the owners take title as joint tenants with rights of survivorship. If it doesn’t say joint tenants with rights of survivorship or at least joint tenants, then the law may imply that the owners were tenants in common.

In your situation, if you and your wife owned the home as joint tenants, when she died, you automatically became the owner of the home. The mortgage does not go away. The mortgage stays with the home until the loan is paid off. Your wife’s estate may be liable to the lender and if you don’t pay the monthly mortgage payments, the lender can foreclose on the home, sell it and use the money from the sale to payoff the loan.

Can a Surviving Spouse Sell a House as Joint Tenants or Tenants in Common?

Upon her death, as a joint tenant, you would become the sole owner of the home and can move forward to sell the home. Your only issue is in dealing with the lender. Sometimes lenders get pretty careful when they deal with the spouse that is not on the mortgage. Sometimes lenders can be a pain even when they deal with the co-borrower and not the borrower. So, you may have problems getting a demand letter or payoff letter, but with the help of a settlement agent, title company or real estate attorney, you should get it and close on the sale of the home.

On the other hand, if you and your wife were tenants in common, you certainly own your share of the home, but you’ll have to get control of your wife’s share of the home to sell it. This means that if she died with a will, you might have to get the cooperation of the executor of her will to assist in the sale of the home. You may very well be the executor, but you now wear two hats. One is your own as the owner of the home and the other is as the executor of your wife’s estate.

The process of selling a home once a co-owner has died can be more complicated and you might need the help of an estate attorney or real estate attorney. We hope this brief summary help you as you move to sell the home and we are sorry for your recent loss.