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.)
There could be another complicating factor. You say that the concept is for you to build a house on your stepson’s property. Is he planning to give you a life estate on the whole property or only the parcel where you will build your house? If it’s a much larger property the only way to give you a life estate on your house alone may be to subdivide the land. The other option would be to guarantee your and your husband’s interests through a contract. This would not be quite as protective as a life estate since it would not be an interest in real estate, but should still protect you if carefully drawn up.
