How Does Ownership of Real Estate By Spouses Get Handled During Probate? - Pennsylvania
The Short Answer
In Pennsylvania, how a married couple titled the real estate usually determines whether it goes through probate. If the property was owned as tenants by the entirety (the most common form of spousal ownership), the surviving spouse typically becomes the sole owner automatically and the home is generally not a probate asset.
What Pennsylvania Law Says
Probate is mainly concerned with assets titled in the deceased person’s name alone (or otherwise payable to the estate). Real estate owned by spouses can be different because certain forms of co-ownership include a survivorship feature—meaning the survivor takes ownership by operation of law rather than by a will or intestacy.
That said, not every deed between spouses is the same. A deed might be titled as tenants by the entirety, joint tenants with right of survivorship, or tenants in common—and each can change whether the deceased spouse’s interest becomes part of the probate estate.
The Statute
The primary law governing this issue is 20 Pa.C.S. § 8503.
This statute addresses how property held by joint tenants or tenants by the entirety is handled when there is not sufficient evidence the co-owners died other than simultaneously—requiring the property to be distributed in shares as if each had survived the other.
For many families, the practical takeaway is: if the spouses did not die simultaneously, survivorship-style ownership (like tenancy by the entirety) often means the surviving spouse takes title outside the probate process—though you may still need legal work to clear and document title for future sale or refinancing.
Related reading: Do I have to probate a jointly owned house after my spouse dies in Pennsylvania? and Does joint ownership between spouses override inheritance rights in Pennsylvania?.
Why You Should Speak with an Attorney
While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:
- Strict Deadlines: If the case involves a “simultaneous death” question (or there’s uncertainty about the order of deaths), the survivorship analysis can change who inherits and may trigger probate litigation under 20 Pa.C.S. § 8503.
- Burden of Proof: The deed language, county recording history, and other evidence may determine whether the property was truly held with survivorship rights or whether a probate interest exists that must be administered.
- Exceptions: Certain fact patterns can override the “automatic transfer” expectation—such as disputes about the validity of the deed, creditor issues, or situations involving wrongdoing (Pennsylvania has specific rules affecting entireties property in those circumstances). For example, Pennsylvania law has a special rule for entireties property in slayer/elder abuse situations under 20 Pa.C.S. § 8805.
Trying to handle this alone can lead to title problems, delays in selling the property, or unintended distributions—especially if other heirs are involved or the deed is unclear.
Get Connected with a Pennsylvania Attorney
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Disclaimer: This article provides general information under Pennsylvania law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.