Iowa’s Intestacy Laws Dictate that Surviving Spouse Inherits Pro Rata Share of Homestead and Mortgage

July 20, 2022 | Kitt Tovar Jensen

On July 20, 2022, the Iowa Court of Appeals affirmed that a surviving spouse inherited one-half of the deceased spouse’s interest in real property as well as the proportional share of the mortgage. The court held that the probate code does not give a surviving spouse a special privilege to inherit an unencumbered homestead at the expense of the other beneficiaries.


After getting married, James and Karen lived on James’ property. However, Karen was never added to the mortgage. James passed away intestate. He was survived by Karen and his two adult children from a previous relationship.

Acting as the administrator of the estate, Karen petitioned the court for a declaratory order to decide who was responsible for the mortgage on the property. Karen asserted that the remaining loan balance must be paid from the adult children’s inheritances. The district court rejected this argument and found that Karen’s share of the property was “subject to a pro rata share of the mortgage.” Karen appealed.

Court of Appeals Decision

Under Iowa intestacy laws, the surviving spouse of a decedent who has “children who are not also the children of the surviving spouse,” is entitled to one-half of the real property value “possessed by” the decedent. Iowa Code § 633.212(1). The court explained that under the plain meaning of the statute, a surviving spouse is entitled to one-half of the equity which the deceased spouse possessed.

Karen maintained, however, that because she never joined the mortgage, the other heirs must satisfy the remaining debt. In support of her argument, Karen relied on Haynes v. Rolstin and Dalton v. Dalton. 145 N.W. 336 (Iowa 1914); 159 N.W. 992 (Iowa 1916). The court noted that both cases predate Iowa’s current probate code and even directly contradict it. Therefore, § 633.212 applied.

Lastly, Karen argued that she was entitled to take the property title free and clear because it was a homestead. The court rejected this argument. Although other provisions in the probate code have made the distinction between a homestead and other real property, § 633.212 does not. Compare Iowa Code §§ 633.212(4), .240. As a result, the term “real property” encompassed homestead. The court affirmed the district court’s ruling.


The Center for Agricultural Law and Taxation is a partner of the National Agricultural Law Center (NALC) at the University of Arkansas System Division of Agriculture, which serves as the nation’s leading source of agricultural and food law research and information. This material is provided as part of that partnership and is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.