Probate and Community Assets


The death of a spouse is a devastating loss. Sadly, surviving spouses are put in a position to simultaneously grieve their loss but to also take the steps necessary to settle their spouse’s estate. Surviving spouses have important rights when it comes to probate, and understanding these rights can help them retain financial stability.

Community Property

Nevada is a community property state. When a couple gets married, property that either spouse earns or acquires during their marriage is considered community property, giving each an equal stake in the property. This concept is applied in divorces, where each spouse has a right to half of the marital property when their marriage ends. It also applies when a spouse (also known as a decedent) dies.

When a married decedent passes away, the surviving spouse has an “undivided one-half interest in the community property”, which is the sole separate property of that surviving spouse. This means that when a personal representative or administrator identifies and takes control of the decedent’s estate via probate proceedings, the surviving spouse’s separate property is not subject to division or distribution to the decedent’s heirs. Only the decedent’s separate property will be distributed in probate.

Exceptions to community property are similar to the rules in a divorce. If the couple has a prenuptial agreement or separation agreement that designates the property as separate instead of community property, then the agreement controls how the property will be designated in probate. Also, a spouse who kills the decedent is not permitted to benefit from that act in probate.

Homestead in Probate

Also, to the laws of community property, surviving spouses have a right to remain in their homes. If either or both spouses have designated their residence as their homestead, then the rights to the home vests in the surviving spouse upon the decedent’s death. This provides stability for the surviving spouse while also providing certain protections from creditors.

Viloria, Oliphant, Oster & Aman L.L.P. is Here for You

If you spouse has passed away and you need guidance or representation to bring the estate through the probate process, contact Viloria, Oliphant, Oster & Aman L.L.P. We understand that this is an immensely difficult time for you. Our lawyers are compassionate, experienced, and knowledgeable professionals who will listen to you and help guide you in your probate proceedings. Call our office at (775) 227-2280 to schedule a consultation or contact our office through our website.

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