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

[Diane J. Kiepe]

I have been following  this thread with interest.  I am curious how many folks out there (if any) have seen a provision upheld regarding removal from the home upon remarriage or cohabitating.  I've seen it in documents, and have had requests to put it in trust documents but I always am suspect of the reality of such a clause.  Any real life experience you can share is appreciated.

Thanks in advance.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Thursday, August 26, 2021 5:01 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>; mikez at zenolawfirm.com
Subject: Re: [WSBAPT] giving surviving spouse in 2nd marriage right to live in house for life

I vote for a trust, which can include all of the detailed provisions you like.  This is very commonly done.  I vote against trying to include those provisions in a deed.  Too messy.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jade Coppieters
Sent: Thursday, August 26, 2021 2:44 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>; mikez at zenolawfirm.com<mailto:mikez at zenolawfirm.com>
Subject: Re: [WSBAPT] giving surviving spouse in 2nd marriage right to live in house for life

Regarding the capital gains exclusion, its only available if the trust is a grantor trust, Treas. Reg. § 1.121-1(c)(3)(i)

J. M. Coppieters, Esq.
Phone: 206-236-1500
Fax: 306-905-5912

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Mike Zeno
Sent: Thursday, August 26, 2021 2:02 PM
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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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