Articles & Alerts

Many adults in committed relationships choose not to get married, especially if they have been divorced and are not planning on having children. Typically, in these situations, one person already owns a residence and the other person moves in with them. Over the years, the couple jointly acquire personal items, like furniture and art and place them in their home.  But what happens if the owner of the property passes away?

Ultimately, the surviving partner legally has no right to continue to live in the residence they once shared unless there is a specific provision in a will that provides conditions for them to stay. If there is no such legal document, the beneficiary or children of the deceased partner may not want the partner to be living there, leaving the partner without a home. How can the survivor be protected?

One of the options is for the owner of the property to create a life estate for the partner while writing their will or revocable trust. A life estate gives the surviving partner the right to live in the property for life. The question then becomes, who pays for maintenance and repairs of the property? If the survivor does not have enough funds, it is important that the owner has factored this into the will to cover the expenses of maintaining the property. In addition, there are times that arguments can occur about what is considered to be repairs vs improvements.  It is recommended to write clear instructions in the testamentary documents to prevent these disputes.

Another option is a provision for the surviving partner to stay for a certain duration of time, not for life. This will allow the surviving partner some time to get on their feet and find a new place for themselves to live.

Another point of contention could be who gets the art in the apartment or house. If the art is considered joint property, by right of survivorship, it usually automatically goes to the surviving partner. If the art was a gift, it’s important to note whether it was a joint gift. Providing proof of ownership, especially for artwork purchased a long time ago, is also essential to minimize confusion. There should be a written agreement to capture the ultimate ownership of the items.

Keep in mind that the life estate is established by a will or irrevocable trust and is legally enforceable. A letter of wishes left behind for a partner, even if it’s notarized, is not.

In order to address issues that are specific to your situation, and for additional or other related information, contact your Anchin Relationship Partner or Mela Garber, Tax Leader of Anchin Private Client at [email protected].