The Short Answer: No, Not Automatically
Under Georgia law, marriage does not automatically transfer your assets to your spouse when you die. What your spouse receives, and how quickly they get it, depends entirely on how each asset is set up before you die.
Every asset in your estate falls into one of two categories:
- Non-probate assets: Assets that transfer directly to a named beneficiary or co-owner when you die. These bypass the courts entirely. Your spouse receives them in days to weeks.
- Probate assets: Assets that must go through the Georgia probate courts before your spouse can receive them. This process takes 9 to 18 months and costs an average of $15,000 for a simple estate.
The goal of estate planning is to make sure every asset you own falls into the first category. Most Georgia families are surprised to find out how much of what they own falls into the second.
What Happens to Your House When You Die in Georgia
Your home is usually your largest asset. What happens to it when you die depends on how the title is written, not on the fact that you are married.
Sole ownership: If the house is in your name only, your ownership must go through the Georgia probate courts when you die. The court distributes your share according to your will or, if you have no will, according to Georgia’s intestacy laws.
Tenants in common: If you and your spouse own the property as “tenants in common,” the same rule applies. Your half goes through probate. Your spouse’s half does not. But your spouse does not automatically receive your half.
Joint tenants with right of survivorship: If you own the property as “joint tenants with right of survivorship,” each of you owns 50%. When one spouse dies, the surviving spouse automatically receives the other 50%, with no court involvement. This is the title distinction most couples miss.
Revocable living trust: If the property is held in a revocable trust, it avoids probate entirely. The trust handles the transfer directly to whoever you named, when you named it, with no court required.
Transfer on Death Deed: Georgia added the Transfer on Death Deed effective July 1, 2024. This lets you name a beneficiary directly on the deed. When you die, the property transfers to that person without probate. It is most commonly used to pass a home to children after both spouses are gone.
If your home does have to go through probate, here is what that means for your family:
- Cost: Probate costs $8,000 to $15,000 for a simple Georgia estate in attorney and court fees. Complex estates with blended families, rental properties, or disputes can reach $35,000 or more.
- Timeline: The process takes 9 to 18 months from the date of death to the date assets are distributed. Your spouse cannot sell, transfer, or refinance the property during this time.
- Control: While the estate is in probate, the court controls the estate. Your family cannot access funds, sell property, or make decisions about the assets until the court closes the case.
Key Point
A will does not make your home avoid probate. A will is a set of instructions to the probate judge about how to distribute your assets. The assets still go through the court process. Only joint tenancy with right of survivorship, a Transfer on Death Deed, or a revocable trust actually bypasses probate.
What Happens to Your Bank and Investment Accounts
Bank accounts and investment accounts follow the same basic rules as real property.
If an account is in your name only and has no designated beneficiary, it must go through probate. While the estate is in probate, your spouse cannot access that money. If your household relied on that account to pay the mortgage, utilities, or living expenses, your spouse will need to find another source of funds for the full duration of the probate process.
There are three ways to keep financial accounts out of probate:
- Joint ownership: Add your spouse as a joint account holder. When you die, they have full ownership immediately, no court required.
- Payable-on-death (POD) beneficiary: Name your spouse as the POD beneficiary on any account where joint ownership is not available. When you die, the bank pays the funds directly to your spouse.
- Retitle accounts into a revocable trust: Accounts held in the name of your trust transfer according to the trust terms when you die, with no court involvement.
Any account that is not set up one of these three ways becomes a probate asset. Your spouse will wait the full 9 to 18 months before touching a dollar of it.
What Happens to Your Retirement Accounts and Life Insurance
Retirement accounts and life insurance policies work differently from bank accounts. You cannot jointly own a retirement account. It must be in your name alone. The same is true for most life insurance policies.
What you can do is name a beneficiary. If your spouse is named as the beneficiary on your 401(k), IRA, or life insurance policy, those funds are paid directly to them when you die, completely outside of probate. The payout goes to your spouse in weeks, not months.
What happens if you have no named beneficiary? The payout goes into your estate and must go through probate. This includes old 401(k) accounts from a job you left years ago, life insurance policies set up before your marriage, and any account where the named beneficiary died before you and you never updated the form.
Check your beneficiary designations now. Not when you have time. Now. Old designations can direct money to an ex-spouse, a deceased parent, or a child from a prior relationship, and Georgia courts will honor whatever the form says.
What Georgia Law Does When You Have No Will
If your assets go through probate and you have no will, Georgia’s intestacy laws determine who receives your estate. Under O.C.G.A. § 53-2-1, the default rules are:
- If you have no children, your spouse inherits your entire estate.
- If you have one child, your estate is split equally between your spouse and that child.
- If you have two or more children, your spouse receives a minimum of one-third, and your children split the remainder equally.
There are two things about Georgia’s intestacy law that most people do not expect.
First, Georgia is one of the few states with no minimum spousal elective share. In most states, a surviving spouse can claim a guaranteed portion of the estate regardless of what a will says. Georgia does not have this protection. A spouse in Georgia can be disinherited in a will entirely.
Second, the limited protection Georgia does provide is called Year’s Support. A surviving spouse can petition the probate court for an amount equal to what the deceased contributed to household expenses in the 12 months before death. This is not a guaranteed share of the estate. It is a limited remedy, and it must be filed within 2 years of the death.
The Problem That Gets Much Worse in Blended Families
Most people assume that intestacy is an edge case that only affects complicated situations. It becomes a serious problem in blended families, and the consequences are specific.
Your spouse is married to you. You also have two children from a previous relationship. Your home is in your name only. Under Georgia’s intestacy rules, your surviving spouse receives one-third of the home. Each of your two children receives one-third.
Your surviving spouse now co-owns the home with two people who may have no relationship with them. Those children inherited their shares of the property. That is their legal right. If they want to sell, they have majority ownership. They can petition the court to force a sale of the property. Your surviving spouse cannot stop it.
When the sale closes, your spouse walks away with one-third of the equity. The home you expected them to live in is gone. When they go to buy their next property, they are working with a fraction of what you intended to leave them.
This outcome does not require anyone to be malicious. It is the default result of dying without a plan in Georgia when you have children from a prior relationship.
Why Having a Will Is Not Enough
A will is not a plan to avoid probate. A will is a document that tells the probate court what you wanted. Your assets still go through the court process. A will does not speed it up, reduce the cost, or give your spouse access to your accounts while the case is pending.
A will also becomes a public record the moment it enters probate. Anyone can search Georgia probate court records and find out what you owned and who received it.
There is one more problem specific to Georgia: a will can only distribute assets in lump sums. If you want to leave money to your spouse in a way that provides income during their lifetime and then passes the remainder to your children, a will cannot do that. Only a trust allows controlled, conditional, or staged distributions.
The tools that actually bypass probate are: joint ownership with right of survivorship, named beneficiary designations, and a revocable living trust. A will is none of these things. Having a will is better than having nothing, but it does not solve the core problem.
