It is not uncommon for people who have married late in life, or who are living with a significant other to whom they are not married, to want to protect that other person, and make sure that the other person has a place to live as long as they need it, while also ensuring that their own children ultimately get the family home, or the beach house, or the investment property.
If a piece of real estate is given outright to the late in life spouse, or to the unmarried domestic partner, this person could lose the property through no fault of their own, if they get sick or need long term care or are in an accident.
The late in life spouse or the unmarried domestic partner could also intentionally sell or give away the property, defeating the goal of ultimately having the real estate flow to the child of the original owner.
This is true if the transfer to the late in life spouse or the unmarried domestic partner is accomplished immediately, by adding them to title with a tenancy by the entirety (if married) or as an owner with a right of survivorship (if not married).
This is also true if the transfer is accomplished by giving the real estate to the late in life spouse or the unmarried domestic partner through a Will or a trust.
In a situation of this kind, where a parent does not want to transfer the property to their children immediately, and does not want a trust, but wants to ensure that the property will not be lost to unfortunate circumstances in the future, while also providing for the late in life spouse or the unmarried domestic partner if this can be done without disinheriting their own children, it can often be wise to deed something that is similar to a life estate, but that is also less than a life estate, to the late in life spouse or the unmarried domestic partner.
A trust (even if it is a trust containing only this one single asset, if a full revocable living trust for all assets is not wanted) is generally a better idea, however. This trust can continue to hold the property after the parent dies, providing a place for the late in life spouse or domestic partner to live, while also protecting the children who will ultimately receive the property.
For more information on this, see the article on How To Protect A Delayed Gift of Real Estate elsewhere in this series of articles.
Steven A. Heinrich
Divorce & Custody
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