[WSBAPT] giving surviving spouse in 2nd marriage right to live in house for life

[Mike Zeno]

Dear all:

I have a situation which I'm sure is pretty common, but which I have never had to deal with   Second marriage.  Wife wants husband to be able to stay in her house after she dies, with her son (from prior marriage) to receive the property after surviving husband's interest terminates.  Marriage is solid, everyone gets along great.

Let's assume the wife intends for the surviving husband's interest to terminate if he moves out or sells the property, and that upon sale she would want her son to receive all the proceeds.  Maybe there would be other conditions-such as that the husband's interest would terminate if he remarries...

I 'm inclined to avoid giving the husband any interest in the property before wife's death, because that's not really how the parties conceive their interests.

What is the best way to structure this?  The wife's Will could create a conditional life estate in the husband (ie, conditioned on his continued residence there, etc.) but I'm wary of creating estates in real property that are defeasible and atypical.  It may be that some sort of trust would be better-but what would its features be?  Would capital gains exclusion for residence sales apply if surviving spouse sold the house?  Other tax issues?

Any help would be much appreciated.

Mike


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