There are several major considerations that need to be evaluated before any provisions in the trust document are drafted with the requisite language outlining the rights of the spouse that has been left alone.
There is a strong need for clarity regarding the rules about what happens when the surviving spouse from a second marriage, who is not an owner of the home, wants to remain in the home after the death of the owner. A kind-hearted practice is to allow the surviving spouse to remain in the home and enjoy the memories the couple shared, says The Union in the article “Estate planning from the heart.”
Giving the surviving spouse the ability to remain in the home, honors the relationship of the spouse with the decedent. It is an act of kindness. However, it does need to be made legally enforceable, in case there are any challenges. Several considerations need to be evaluated in the estate plan:
Can the surviving spouse manage the cost of the home? This may include a monthly mortgage payment, property taxes, homeowner’s dues, insurance, yard upkeep, interior and exterior maintenance, and any repairs that are needed to keep the home working. Another concern is whether the surviving spouse will continue to be able to maintain the home in the immediate and distant future.
The surviving spouse’s health, including physical and mental abilities, needs to be considered. Will the survivor be able to manage if dementia strikes, or if they are afflicted by a serious illness and left in poor health? All of these challenges need to be considered when drafting language regarding the rights of a person to remain in the decedent’s home. For instance, if a person is not mentally competent to live on their own, health problems or the declining condition of the property may arise.
A standard of care needs to be made regarding home maintenance and updates. It may get very specific, including details like pet care and clean-up, internal cleanliness, the presence of roommates or boarders, and an annual or semi-annual inspection to be sure that the home remains in good condition.
The most common problem for a surviving spouse is the financial ability to remain in the home and pay the bills. One solution may be to permit the survivor to stay in the house for two years, creating a trust that can support the cost of maintaining the home during the hardest period of mourning. This gives the surviving spouse time to recover and adjust to the loss.
If the surviving spouse does not have the mental capacity to remain in the house, the choices are difficult. Ideally, both spouses are involved in planning for this possibility, long before the owner of the property dies. There is nothing pleasant or easy about this. However, it must be done. Ignoring it makes a bad situation worse. Will the person needs care, how will that care be paid for, etc.? Don’t leave it for the family to manage.
In the case of a second marriage, leaving the house to an individual who does not have the ability to manage it, creates a difficult situation, unless the decedent is able to leave enough assets in trust for the surviving spouse to maintain the home. There should be no assumption of the ability of the surviving spouse to care for the home, as an unexpected illness or accident could make a person who is healthy at the time of the signing of the agreement, change to one who needs a great deal of help.
The key to a surviving non-owner spouse is to address the “what-if’s” early on, in the context of the estate plan. A plan should be put in place, which may involve trusts or other estate planning tools, to allow the surviving spouse to remain in the home if that is the couple’s wish, and a plan “A,” “B,” and “C” for the unexpected events that occur in the course of aging.
Our experienced estate planning attorneys will create a plan that makes sense for the spouse, the surviving spouse, and the heirs. A family meeting will be helpful to ensure that everyone involved knows what the plan is, so there are no misunderstandings, and all can act from a place of kindness. If you’re concerned about your surviving spouse’s ability to remain in your home after you’ve passed, we invite you to request a consultation to start a discussion with one of our attorneys.
Reference: The Union (April 7, 2019) “Estate planning from the heart”