The Assumption Most Couples Make
You and your spouse bought the house together. Both names are on the Deed. So when one of you dies, the other one just keeps the house. Simple, right?
Sometimes, yes. But the actual answer depends on exactly how your Deed is worded, and many Michigan couples have never looked closely enough at that language to know which category they fall into. The difference between two similar-sounding types of ownership can mean the difference between a seamless transfer and a probate process that takes months and costs thousands of dollars.
Let’s walk through what actually happens in each scenario, what the risks are, and what you should do to make sure your home ends up where you want it to.
The Two Main Ways Michigan Couples Own Property Together
Tenancy by the Entirety
This is the ownership structure that most married couples in Michigan have, even if they’ve never heard the term. When a married couple purchases property together, Michigan law presumes they hold it as tenants by the entirety unless the Deed says otherwise. This form of ownership is exclusive to married couples, and it comes with a built-in survivorship right.
Here’s what that means in plain terms: if you own your home as tenants by the entirety and your spouse dies, you automatically become the sole owner of the property. No probate. No court involvement. The title passes to you by operation of law, meaning it happens because the law says it does, not because a judge approved it.
To make that transfer official in the public record, the surviving spouse typically records a certified copy of the death certificate with the county Register of Deeds along with an affidavit. It’s a relatively straightforward administrative step, not a legal battle. For most couples, this is exactly what happens and it works exactly as they hoped.
There’s another benefit worth knowing. With tenancy by the entirety, neither spouse can unilaterally transfer or encumber the property without the other’s consent. That means if your spouse racked up a significant personal debt, a creditor generally cannot force the sale of your jointly owned home to satisfy that debt while you’re both alive. That protection disappears at death, but it’s a meaningful safeguard during marriage.
Joint Tenancy with Right of Survivorship
Joint tenancy with right of survivorship works similarly in terms of what happens at death: the surviving owner automatically inherits the deceased owner’s share. The survivorship right is the same. Where it differs is that joint tenancy isn’t limited to married couples, so it’s commonly used between siblings, parents and adult children, or business partners who co-own real estate.
For a married couple, the practical outcome at death is nearly identical to tenancy by the entirety. The surviving spouse records the death certificate and an affidavit, and the transfer is complete. But joint tenancy does not carry the same creditor protection during life that tenancy by the entirety does, which is one reason why tenancy by the entirety is generally the better structure for married couples in Michigan.
Tenancy in Common: The One That Doesn’t Automatically Transfer
This is where things get complicated, and it’s where couples sometimes get caught off guard. With tenancy in common, each owner holds a separate, distinct share of the property. There is no automatic survivorship right. When one owner dies, their share does not automatically pass to the surviving co-owner. Instead, it passes according to the deceased person’s Will, or if there’s no Will, through Michigan’s intestate succession laws.
That means if you and your spouse own your home as tenants in common and your spouse dies without a Will, Michigan law determines who inherits their half. In most cases, a surviving spouse would inherit under intestacy, but the process still requires probate. And if there are children from a prior relationship involved, the outcome might not be what either of you expected or wanted.
Some couples end up as tenants in common without realizing it. It can happen when a Deed is drafted without clear survivorship language, when property is transferred into a Trust incorrectly, or when someone inherits a share of a property and ends up as a co-owner with a surviving spouse. If you’re not sure how your Deed reads, now is the time to find out.
What “Automatic Transfer” Still Doesn’t Solve
Even when the transfer itself goes smoothly because you held title as tenants by the entirety, there are practical and legal issues that survivorship alone doesn’t resolve. This is where Estate Planning becomes more than just a formality.
The Mortgage Doesn’t Disappear
If there’s a mortgage on the home, that obligation survives. The surviving spouse becomes solely responsible for it. Most mortgage servicers will continue accepting payments and won’t call the loan due, but you’ll want to notify the lender, potentially refinance into your name alone, and make sure you can qualify for the payment on your own income. If you were relying on both incomes to cover the mortgage, this is a conversation to have with a financial planner before you’re in that situation.
What If the Surviving Spouse Later Becomes Incapacitated?
Here’s a scenario people rarely think about but should: your spouse dies, you inherit the house outright, and then five years later you suffer a stroke and can no longer manage your own affairs. Who can sell the house, refinance it, or deal with it on your behalf?
Without a Financial Power of Attorney that gives someone that authority, or a Revocable Living Trust that already has a successor trustee named, the answer may be nobody, at least not without going to court to get a conservatorship. A well-drafted Financial Power of Attorney addresses this directly. So does placing the home in a Revocable Living Trust.
What Happens to the Home After the Second Spouse Dies?
Survivorship solves the first death. It doesn’t solve the second. Once the surviving spouse is the sole owner, the home is now entirely in their estate. When they die, the property will pass according to their Will, their Trust, or Michigan’s intestacy laws if they have neither.
This is especially important for blended families. Say a husband has children from a first marriage, and his wife has children from a previous relationship. He dies, she inherits the house through survivorship. Then she dies without a Trust or Will that accounts for his kids. His children get nothing from the home. She may have intended to leave something to them. She just never got around to updating her Estate Plan. This happens more often than people realize, and it can cause lasting family conflict.
When the Home Is in a Trust
Many Michigan couples choose to hold their home in a Revocable Living Trust instead of relying on survivorship rights. This approach has real advantages that are worth understanding.
When real estate is titled in the name of a Trust (a process called Trust Funding), it doesn’t pass through probate at all, regardless of how many owners die. The Trust document spells out exactly what happens: who serves as successor trustee, who inherits the property, whether it should be sold or kept, and under what conditions. The transition happens privately and efficiently, without court involvement.
A Trust also lets you plan beyond the second death. You can specify that after both spouses are gone, the home goes to specific children, is sold and divided, or held for a period of time for a child who needs it. You can even build in protections for a beneficiary who is a minor, has special needs, or struggles with financial management.
One critical point: putting a Trust in place is only half the job. The home actually has to be retitled into the Trust’s name through a new Deed. This step gets skipped more often than you’d think, and it means the Trust does nothing for that asset. If you’ve been told you have a Trust but you’ve never had an attorney confirm that your home is properly titled in it, make that call.
What You Should Do Right Now
Start by pulling out your Deed. You should have received a copy when you closed on your home. If you don’t have one, you can get it from your county’s Register of Deeds office, and in many Michigan counties you can find it online. Look at how the ownership is described. Does it say “husband and wife,” “joint tenants with right of survivorship,” “tenants in common,” or something else? That language tells you which category you’re in.
If you’re not sure what the language means, or if you suspect your Deed might not reflect what you actually want, bring it to an Estate Planning attorney to review. A Deed correction or a new deed can be drafted to fix the problem. It’s not a complicated process, but it does need to be done correctly to be legally effective.
Think through the bigger picture too. What happens if you both die at the same time? What if the surviving spouse becomes incapacitated? What if the home should be divided between children from different relationships? These are questions a Revocable Living Trust, a Will, and a Financial Power of Attorney work together to answer.
Estate Planning for a home isn’t just about the first death. It’s about making sure the property you’ve worked hard for ends up in the right hands, on your terms, without dragging your family through court in the process.
The Bottom Line
For most Michigan couples, tenancy by the entirety means the surviving spouse takes the home without probate. That’s genuinely good news, and it works well as a baseline. But it’s a starting point, not a complete plan. It doesn’t address incapacity, it doesn’t plan for the second death, and it doesn’t give you control over what happens after both of you are gone.
If your home is one of your most significant assets, and for most families it is, it deserves more than a default legal rule. It deserves a real plan.
