Single Owner Spouse

If only one spouse owns the property, he or she may leave the property to the non-owning spouse, or the non-owning surviving spouse will automatically receive a life-estate in the property with the remainder going to the owning spouses lineal descendants.  Any attempt to leave the homestead to anyone else will result in the surviving spouse receiving a life estate and the remainder going to the owning spouses lineal descendants.

This can be a very negative result.  Real property owned in this manner can create unintended conflict in a family.  To begin with, the surviving spouse and deceased spouses' heirs must agree on all transactions with the property.  Everyone must agree on and participate in sales, mortgages, or any other transaction involving the property.  Furthermore, there is the question of who will pay any existing debt on the property.  Technically the spouse should pay the interest and the heirs the principal, but this is very difficult to enforce.  The only way to resolve this when not all parties can agree is through an expensive partition action on the property.

The only way to accomplish any other result is through a waiver of marital rights through a pre or post-nuptial agreement.

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