Am I Protected if My Husband with a Life Estate Dies Before Me?

 In Non-Traditional Families, Real Estate
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Photo by Ethan Sykes on Unsplash

Question:

My husband and I are both in our mid sixties and his son suggested that we build a house on his property and offered to give my husband a life estate in the property. If my husband dies before me, will I be able to stay until my death? Is there a way for a husband and wife to both hold a life estate and have it NOT revert back until both of us are gone?

Response:

It sounds like your husband’s son is being very generous, but you are right to be concerned. If he only extends the life estate to your husband, then it disappears upon his death, whether or not you survive him. Then the property on which you build the house would revert to the son and whether you could continue to live there would be up to him. For this to work for you, your husband’s son needs to give you both a life estate either as joint tenants or tenants by the entirety. That way the survivor of you and your husband will inherit the full life interest and be able to live in the house for his or her entire life. (Actually, while your husband’s son is being generous, assuming he outlives you and your husband, he will ultimately benefit by owning the house you build on his property.)

 

Related Articles:

What Happens to My Life Estate Upon My Mother’s Death?

A Life Estate Interest can be Conveyed But Not Extended

Is a Life Estate a Good Way to Avoid Probate?

Showing 4 comments
  • Windy
    Reply

    To my surprise, I just found out from the investment company that an ‘abandonment forms signed with my name’ were submitted to them in reference to the trust for which I am a co-trustee for my brother’s estate. The investment company is taking this seriously and will notify me when their investigation is finished.

    I have not been an active trustee. However, I never resigned from the position.

    What should I do? I would appreciate hearing from you.

      • Harry Margolis
        Reply

        Windy,
        I’ve never actually come across an “abandonment” form, but this sounds like some miscommunication. It also sounds like you’ve taken the first step by contacting the investment company. I assume you have a co-trustee. You should also be in touch with that individual or company if it’s a corporate trustee.

      • Al Francese
        Reply

        My father passed away years ago. My mother’s will provides a life estate in her residence to one of her children, but the will terminated the life estate if the child died or was no longer residing at said property, at which time the property must be sold and the proceeds divided among me and my siblings. If the child moves into a long-term care facility while my mother is alive and no longer resides in our mother’s house, does that terminate or prevent the theoretical life estate from coming into being as per the will? Upon my mother’s death, would sale of the house, with the will’s life estate, to a third party be a transfer of assets for less than fair value and require compensation under medicaid actuarial rules?

          • Harry Margolis
            Reply

            Al,
            This is complicated and I’d have to see the wording of the will to provide a definite response. But it sounds like under its terms the life estate would not come into existence if the child was not living in the house at the time of his mother’s death. This would not be a transfer of assets for purposes of Medicaid eligibility since the child would not be effecting the change in the terms of his life estate. This would also be true if he moved to a long-term care facility after his mother’s death. Though the move to the facility would cause the end of his life interest, it would be hard for the Medicaid agency to argue that he moved to the facility for the purpose of terminating the life estate.
            All of this said, I much prefer these property right to be created through trusts rather than in wills. It’s much simpler if wills simply convey property upon the death of the owner rather than create certain contingent rights that will change over time. Such rights are better set out in trusts with a trustee who can manage them.

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