Does my wife’s mother have a right to remain living in the home even though she was never added to the title?

Dear Len & Rosie,

My mother-in-law is 85 and is married to a man who is almost 90 years old. My wife is concerned that should her mother’s husband die before her mother, his family will want her to vacate the home in which she has lived with her husband for the past twenty-five years.

My wife’s step-father was previously married and was already a widower when he married my wife’s mother twenty-five years ago. Their residence was his own property from before the marriage.

Does my wife’s mother have a right to remain living in the home even though she was never added to the title? Does she have a right to any equity that has accrued in that property during their marriage?

John

Dear John,

Things are not looking so good for your mother-in-law. Everything her husband owned prior to their marriage is his separate property. He has the right to leave his separate property to anyone he wants, together with his half of the community property. If his home was already bought and paid for prior to the marriage twenty-five years ago, the home remains his and your mother-in-law won’t have any right to it if he doesn’t leave her in his will or trust.

If, however, there was a loan against the property when they got married, and they’ve been paying off the loan with their employment income, then a portion of the property will be community property, half owned by your mother-in-law, regardless of who is named on the deed. The amount of this interest is roughly based on the portion of the property actually purchased with community property. However, that won’t give your mother-in-law all of the property or a right to live there until her death.

Your mother-in-law’s concerns can be addressed by estate planning. Her husband and his heirs have a reasonable interest in protecting their family’s property, but it is unlikely that the husband will want his wife of twenty-five years tossed out on the street upon his death. He can, and should, update his will or trust to provide his wife with a right to reside in the property until her death. This way, she can be guaranteed a residence and her husband’s children can be guaranteed their inheritance.

Len & Rosie