Leaving Your Residence to Your Spouse, but only for the Remainder of his/her Life (or some other shorter period)

Although the above discussion speaks in terms of “spouses,” you can leave a life estate to anyone -- it's not limited just to spouses. But when spouses are involved, there's a risk that a surviving spouse who receives little more than a life estate in a residence (which may be worth far less than complete ownership) could end up receiving less than his/her minimum legal share of the augmented estate. In this regard, the law basically entitles each spouse up to ½ of the combined net worth of both spouses. But this ½ share does not vest immediately upon marriage. Instead, it's phased in gradually over a 15-year span. This law is intended to prevent one spouse from completely disinheriting the other spouse. For more information on this subject, click here.

Consequently, if your residence is particularly valuable (especially in comparison to what your spouse owns), and you're not leaving your spouse much if anything other than a life estate, your estate plan may not work. Fortunately, however, the same law that allows a surviving spouse to renounce the other spouse's Will and take up to a ½ statutory share of the augmented estate also allows a surviving spouse to waive this so-called elective share . A waiver of the elective share can also be made in advance of a spouse's death by written agreement.

Due to of the obvious problems that can arise in situations where a spouse attempts to leave the other spouse little more than a life estate, The Weber Law Firm will not provide this option to a married client unless both spouses enter into a written agreement in which each spouse waives his/her elective share to the augmented estate (to the extent necessary to give full effect to the terms of each other's Wills or Living Trusts ). If you and your spouse do not already have such a written agreement, The Weber Law Firm can supply both spouses with a standard fill-in-the-blank form-agreement at no cost which can be used for this purpose.

In this day and age, it's not uncommon for a person to divorce and remarry at least once (and perhaps more often) during their lifetime. Occasionally, a person entering a second (or subsequent) marriage already owns substantial assets on their own  such as a residence. If so, the new couple may decide to make this residence their new home together. But the spouse who already owns the home may nonetheless wish to leave it to someone other than his/her new spouse when he/she dies --such as children from a previous marriage. At the same time, however, this spouse may also desire to allow the other spouse to continue living in the home for as long as he/she wishes (in the event the owner is the first-to-die spouse).

If you find yourself in this situation, then you have few different options. One option is to leave your residence to your spouse outright in your Will (or Living Trust) with the hope and understanding that your surviving spouse will respect your wishes and leave your house in his/her own Will (or Living Trust) to your children. Of course, once you die, your surviving spouse can always change his/her Will to exclude your children. So your house could actually end up going to your spouse's children, and not yours. Consequently, your ability to see that your residence goes to your intended beneficiaries is entirely dependant on your trust and faith in your surviving spouse.

Another option is to give your surviving spouse what the law refers to as a life estate in the residence. Put simply, a life estate is a less-than-complete legal interest in property that gives the designated life tenant (i.e., your surviving spouse) the sole right to the use and enjoyment of your home for the remainder of his/her life. Once your surviving spouse dies, full title in the property reverts to whomever you choose in your Will, such as your children. The life tenant of a life estate, however, is not required to continue living in the property, and in fact he/she can even sell the property. But whoever buys the property owns it only for so long as the original life tenant (i.e. your surviving spouse) is still alive. Once the surviving spouse dies, the property reverts to your designated beneficiaries, regardless of who owns it at that time. As a practical matter, therefore, it's not particularly likely that your surviving spouse would be able to sell your residence, since there may not be many potential buyers willing to purchase property that will soon revert to someone else at some unknown point in time.

However, if you want to prevent your spouse from selling your residence, and/or if you desire that your spouse's interest in this property terminate once he/she no longer occupies your house, you can make continuous occupancy by your spouse an ongoing requirement of the life estate. In other word, the life estate will terminate prior to the surviving spouse's death if the he/she no longer lives at he residence. In this regard, Wills and Living Trusts prepared by The Weber Law Firm allow you the option of including a clause that will terminate your spouse's life estate in the event he/she no longer occupies your residence for a continuous 120-day period. This provision is also likely to be triggered if your surviving spouse is no longer able to continue living in your residence due to medical reasons. At that point, however, there is no longer any need to further delay transferring ownership of your house to your children.

Please be aware that if you choose to leave your spouse a life estate, Wills (and Living Trusts) prepared by The Weber Law Firm also give your spouse a life estate in the tangible personal property located within your residence (furnishings, appliances, etc) unless you leave these items to another beneficiary as part of a separate specific gift.

Please be aware, however, that the Weber Law Firm will not and does not represent either spouse with respect to any agreement to waive their statutory elective shares, regardless of whether we are also preparing your other estate planning documents. Although not absolutely required, both spouses are strongly encouraged to consult with their own separately retained, independent legal counsel regarding the effect and advisability of entering into such an agreement .