As you consider how to best provide for your loved ones after your death, you may run into a snag. You own a home that you and your current spouse occupy, but you don't want it to become part of your surviving spouse's estate upon his or her death. Instead, you want to be sure that it passes to your child from a prior relationship upon your spouse's death.
You may leave the home to your child in your will, or even put the home into a trust, but that could risk your spouse not having a home upon your death. You may love your child, and he or she may verbally agree to allow your spouse to live in the home after your death, but why take the risk that a falling out could occur that leaves your spouse without a home when you are no longer around?
How can you ensure your spouse can remain in the home?
One way to make sure your spouse won't end up homeless when you pass away is to make him or her a "life tenant" of the property. For the rest of his or her life, your spouse can live in the home and enjoy all of the rights and responsibilities that come with owning a home. However, your estate transfers actual ownership of the home to your child upon your death, which makes your child the "remainderman" who takes possession when your spouse passes away.
How does a life estate work?
During the remainder of his or her life, your spouse remains responsible for the maintenance and taxes of the home. Your spouse can remodel or redecorate the home as long as this does not decrease its value. If your spouse decides to take in a boarder or roommate, that right exists. In addition, if the relationship between your child and surviving spouse becomes strained or otherwise breaks down, your child cannot evict him or her.
To protect your child, the law prevents your spouse from leaving the home to someone else in his or her will and from selling the property. Your spouse may not cause any damage to the property or take any action that could decrease its value.
Setting up a life estate
If this option sounds like a viable option in your situation, you may want to take advantage of experienced legal resources in your area to help ensure that the formation of the life estate complies with all current laws in order to avoid anything going wrong when you aren't around to fix it.