Must a Minor Child Get His Share of His Father’s House Even Though He’s Not Paying Off the Mortgage?
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Question:
In a probate estate where a husband dies intestate leaving a wife and two children (a minor child who is also the child of his widow and an adult child who is the child of a prior relationship), if the only asset is partially encumbered real estate in which the widow and her child live, assuming the adult-child-heir could be bought out, would or should the widow’s child receive a portion of the real estate even though his mother (the widow) will be increasing the value of the asset by paying down the mortgage during the minor’s lifetime? The house has a fair market value of about $300,000 with a $100,000 mortgage.
Response:
Yes, the child is entitled to his share of the estate under the intestacy rules, which are the laws in place to determine who receives trust assets in the absence of a will or trust. Under the Massachusetts intestacy rules, the surviving spouse is entitled to “the first $100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent’s surviving descendants are not descendants of the surviving spouse.” This gets a little complicated when the property is subject to a mortgage, but the estate value totals $200,000. The widow is entitled to three quarters of this: $100,000 off the top, plus half the remaining $100,000. The last $50,000 of value should be divided by the two children—$25,000 each. Assuming the mother comes up with the $25,000 to which the adult child is entitled to, she would buy out her share and end up with seven eighths of the house, with her son owning one eighth: $200,000/($150,000 + $25,000) = 87.5%.
Your next question is whether the mother’s share should expand as she pays off the mortgage. Perhaps the answer would be yes if this were a non-family situation. But this is anything but that. The mother is responsible for paying whatever is necessary to raise her child. If she weren’t paying the mortgage, she’d be paying rent. It seems a little cold to begrudge the son his one-eighth share because her mother has been carrying out her parental duty of keeping a roof over his head.
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