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

[Eric Nelsen]

I litigated this some years back and it can be a nightmare if it's not set up in great detail. Here is the laundry list of issues I wrote down at the time, to think about in EP in order to minimize potential issues:

Will provisions for post-death occupant of house:

                gift is only a right to occupy and is conditioned on fulfilment of all conditions herein. right to occupy is not assignable and may not be shared except for casual overnight visiting guests.
                gift includes right to occupy without payment of rent during pendency of probate, but during pendency of probate the beneficiary must cooperate in allowing access to the property to the full extent the PR finds it necessary or convenient, at any time, upon 12 hours' oral or written notice or no notice in case of emergency.
                gift is not a life estate. the gift is intended solely as an accommodation to my partner to allow her/him to continue to live at the property where we lived together. my intent is for all value of the real property to pass to my residue heir subject only to this limited right to occupy which has no market value, for the full value of the property to be preserved for the residue heir, at occupant's expense during occupancy, and without any financial burden on my estate or residue heir during occupancy.
                right to occupy is not exclusive as against the estate (not residue heir) retains rights to enter and inspect to the same extent as a tenant-in-common, and estate may store tangible personal property that belonged to decedent at time of death until probate is closed.
                right to occupy belongs to partner only and may not be extended to any overnight guests for longer than seven (7) days out of any six (6) week period; provided, partner may have a paid in-home licensed and certified caregiver
                occupancy defined as: actually occupying the home on an overnight basis for at least five weeks out of every ten weeks [except winter snowbird? except up to 90 days if hospitalized or in convalescent care?].
                estate has a right to maintain exterior surveillance cameras and other equipment to keep house secure and monitored.
                must pay for reasonable maintenance and repair. scope of reasonable maintenance and repair includes without limitation maintaining roof secure from leaks; maintenance of exterior envelope against water leaks; repair or replacement of refrigerator, oven/range, washer/dryer, microwave; regular mowing and trimming of yard and curtilage; [etc.]
                must pay all property taxes when due.
                must pay all utilities when due.
                must pay for and maintain homeowner insurance for full replacement value of the house, naming residue heir as insured; shall cover for fire, and flooding if necessary, but not responsible for earthquake coverage; shall include inflation rider to maintain full coverage; occupant to select the company with residue heir's approval, which approval shall not be unreasonably withheld.
                residue heir has right to direct access to and communication with insurer
                must pay mortgage?
                if estate has insufficient other assets to pay all costs of administration and lawful claims against the estate, then estate may sell the house and substitute a gift to occupant calculated as $X per year by actuarial table of occupant's life.
                residue heir to have right to routinely inspect the property no more often than semi-annually upon 48' hrs notice to occupant, and additional right to enter at any time without notice in emergency to preserve property value
                residue heir right to receive annual accounting relating to payments, maintenance and repair
                notice of default and opportunity to cure, residue heir to have right to issue
                residue heir to have right to use unlawful detainer procedure for failure to meet requirements, award of atty fees to prevailing party

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mike Zeno
Sent: Thursday, August 26, 2021 2:02 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] giving surviving spouse in 2nd marriage right to live in house for life


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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