Who gets the house when my father dies?

[ticee]

What is the name of your state (only U.S. law)? Ohio

My father and his girlfriend got together in 1987, but they never married. My father told me that I would get his house when he died, but there is no will or other legal document stating anything to that effect. Are they common law married? And if so, will the house automatically be in probate upon his death? Could I potentially have to fight the common law wife in court? He and she do not currently live in the house. They in fact live together in another city. I live in the house in question and make the payments on it.

[IsabellaSoriano]

Originally Posted by ticee

What is the name of your state (only U.S. law)? Ohio

My father and his girlfriend got together in 1987, but they never married. My father told me that I would get his house when he died, but there is no will or other legal document stating anything to that effect. Are they common law married? And if so, will the house automatically be in probate upon his death? Could I potentially have to fight the common law wife in court? He and she do not currently live in the house. They in fact live together in another city. I live in the house in question and make the payments on it.

are there any other siblings?

[ticee]

No other siblings. His girlfriend has a son but not my father's.

[anteater]

Common law marriage was abolished in Ohio in October 1991. However, common law marriages established before then would still be recognized.

Are they common law married?

Nobody here can answer that since it depends upon specific facts and circumstances. One source indicates that the elements that must be present in Ohio to establish a common law marriage are:

- a mutual agreement of marriage "in praesenti" (presently);
- made by persons competent to marry;
- followed by cohabitation (including a sexual consummation of the marriage);
- a holding out to the public that the parties are actually husband and wife;
- a reputation in the community that the parties are husband and wife; and
- that the Common Law marriage was entered into before October 10, 1991.

Ohio recognizes "transfer on death deeds." That is one way that your father could transfer the house to you upon his passing without the necessity for probate.

[ticee]

I'm not familiar with that. What needs to be done on his part or mine? If I discuss with him about getting a will and if in fact he does it, would that solve the problem?

[IsabellaSoriano]

Originally Posted by ticee

I'm not familiar with that. What needs to be done on his part or mine? If I discuss with him about getting a will and if in fact he does it, would that solve the problem?

if dad actually writes a will and puts you in it to inherit, that covers you.

but know i'm wondering, if dad and g/f did in fact hold themselves out to be married BEFORE the abolishment, would she be able to contest the will?

[anteater]

Originally Posted by IsabellaSoriano

if dad actually writes a will and puts you in it to inherit, that covers you.

but know i'm wondering, if dad and g/f did in fact hold themselves out to be married BEFORE the abolishment, would she be able to contest the will?

A surviving spouse could contest the will, but will contests are tough. Nothing says that a spouse must be included in a will.

However, as in most states, Ohio allows a surviving spouse to make an election to take a percentage of the estate no matter what the will says. In Ohio, it is:

(C) If the surviving spouse elects to take under section 2105.06 of the Revised Code, the surviving spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent’s children or their lineal descendants survive, in which case the surviving spouse shall take not to exceed one-third of the net estate.

Which is essentially what a surviving spouse would be entitled to under intestacy.

The really essential question is whether a common law marriage exists. OP's task is to get father to an attorney who can discuss the issues involved.

[nextwife]

Why don't you just buy it from him NOW? For the balance of the mortgage, if he will?

That way, YOU can legally deduct the mortgage and property taxes. Plus, that way, it won't potentially need to be sold to pay estate creditors.

[ticee]

I'm unable to do that right now. But thanks.

[VeronicaLodge]

why can't you, you said you were currently making the payments