One of the issues that can arise on the death of a spouse with children from a previous relationship is how long the surviving spouse can remain in the family residence. This is an important issue as the family residence can be a major asset in an estate and at some point the children will want to receive their share of the equity in the house. On the other hand neither spouse wants to have to leave their home as soon as the other dies.
The solution is to make both a will and a cohabitation agreement or marriage agreement that sets out how long the surviving spouse can remain in the house. It’s also important that the agreement include the following:
• Who will pay the property taxes and house insurance (often the estate will pay one half and the surviving spouse will pay one half)
• Who will pay the utilities
• Who will pay for minor and major repairs and maintenance
• Who will pay the mortgage
• Can the surviving spouse remain in the house if they are living with a new partner
• When the surviving spouse vacates who will list the house for sale
• Does the surviving spouse have an option to purchase the house and on what terms
The clause in the agreement that sets out these terms will also need to be referred to in the will. These and other considerations have to be spelled out very carefully so that both the surviving spouse and the executor of the deceased spouse’s estate have clear instructions. It is also very important that the title of the family residence not be registered in joint tenancy but as tenants in common. If it’s in joint tenancy the house may pass to the surviving spouse on the death of the first spouse and the provisions of the will and cohabitation agreement may not apply.
Deborah A. Todd
