Q: I have a property settlement with my ex-partner which splits mortgage payments, maintenance, and insurance expenses equally. I have a sole occupancy of the property in a life interest in the title.
I have a son and if I die and my son is not 18, my lawyer said his father can move into live with my son. Can I change the life interest to specify that I wish the property to be sold and my share be given to whom I wish if my son is under 18 years of age.
A: If in your property settlement with your ex-partner you received an ownership interest in your home and retained the right to live in the property for the rest of your life you should have flexibility to decide what should be done with the property after your death.
Let’s look at two key issues: The first issue is your right to remain in the property for the rest of your life. During your life, you can continue to live and use the property as if it were entirely your own and your ex-partner can’t require you to move out of the home.
You really need to sit down and review the life estate document and determine what benefits it gives you and what burdens it may place on you. While you say that you and your ex-partner split all expenses equally and you are both co-owners of the home, your ex-partner continues to own a portion of the home and has all the rights to the home except for the ability to live in and use the home.
If you die, your right to live in the home would cease to exist at that time. You would continue to own your half share interest in the home but so would your ex-partner.
That takes us to the second issue: If you are no longer around, what would happen to the home if your estate owns half of the home and your ex-partner owns the other half? You could provide in your will that your half interest in the home must be sold, but no one would buy your half interest unless they could get the entire house. Your estate could request that your ex-partner work with your estate to sell the home, and if your ex-spouse agrees, the home could be listed for sale and sold with the proceeds split between your estate and your ex-partner’s estate.
However, if there is no agreement as to the sale of the home, your options might be limited, short of going to court and forcing the sale of the home.
For your own protection and peace of mind, you should sit down with an estate attorney and determine how to protect your share of the home. You might decide to put your share of the home into a living trust that is controlled after you die by a person you trust. That person would handle the affairs relating to the home and safeguard your interest in the home for the benefit of your son.