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What Do You Mean, I only own ½?

Posted by Kerry Hagan | Dec 11, 2023 | 0 Comments

I feel sorry for people, I really do. One of the things I always say is: get your property Deed and your Last Will & Testament straight. It's the smartest money you'll ever spend. Some folks listen. Some don't. But I feel bad because of the following situation — that happens all the time. . . .

A couple owns real estate, a house or land. Now, this family is a blended one where the husband or wife, or both, were previously married. The husband has three children from his prior marriage. He dies. His surviving spouse comes in a few months later and says: “Mr. Hagan, I've decided to move to Denton to be close to my sisters and I want to sell the house.” I call one of my coworkers in and they get the information to pull the deed. While they do that, we chat. I ask about the timing of when they were married and when they bought the property. My coworker returns with the printed deed they pulled electronically from the courthouse records. I ask one last question: did your husband have a Will? She says, “no, I couldn't get him to come in and make out a Will – he admitted he was superstitious but said he just didn't want to think it was time to die yet. So, no. No Will.

So, the summary of the situation is this: couple gets married THEN they buy property THEN husband dies LEAVING surviving spouse AND children from a prior marriage BUT no Last Will & Testament. 

This is when I look over and say, “you only own one-half (½) of your property.” And then, using the words of the title to this blog post, the spouse says in disbelief: “What do you mean, I only own ½?” I then say, “I assure you I'm right.” As the words are sinking in, I say, “maybe they will agree to sell it and let you keep all the money.” She then says, “but his three kids think I stole their father from their mother and they hate me. They will never cooperate with me on anything; they didn't even cooperate with me on the funeral.”  Sadly, I deliver the bad news. His children now own the other half of the property; the surving spouse only owns ½ and the three children of the deceased husband now own ½ (3 x 1/6 = ½).

This situation creates a “Title Defect.” It has to be “cured.” The property cannot be sold by the spouse given the current state of the title. This is what we discover and fix here at Unless the surviving spouse and the husband's children make agreements amongst themselves, or other involuntary solutions are implemented, the property can't be sold. No rational buyer will buy. We can fix it. The “best fix” was for the husband to have come in and had us prepare a Will. By not having a Will, the deceased husband created a much bigger “problem” for his spouse when he died — assuming he actually wanted the property to go to his spouse. It doesn't matter what anyone “thinks” he wanted. It's a question of law. So, although this problem can be cured, there's not an argument against the fact that Texas Law says: ½ to the surviving spouse, ½ to the three children. Now, losing half of the marital property is not “good news” for most people who have lost their spouse. But keep in mind: it could be worse. The situation can be resolved in such a way that the property is sold. But it's never the best situation to be required to fix a problem that was totally and completely avoidable to begin with. 

Like I said earlier, get your property Deed and your Will straight. Just do it. Take care of business. Now. We can help you with both: DEED and WILL. That way you can avoid having a title defect down the road. Now, what if you DON'T take care of business and you do end up with a title defect? Well, we can help you with that too! It is what we do when people come to us with a messy situation they wish they didn't have. We're there for you in those situations. 

However, as I said in the first line of this post: I feel sorry for people, I really do.

About the Author

Kerry Hagan



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