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A parents transfers a house to a child while reserving a life estate for themselves. And the child ends up in a divorce proceeding.
Some parents even go as far as to transfer their house to their child and their son-in-law or daughter-in-law. And now the couple is getting a divorce.
In the divorce, the child's spouse is claiming rights to the house, including a right to sell the house or live in a house until the youngest of the children turn 21. This can become a real problem for parents.
In situations like that, it's best for the parents to hire their own attorney in order to protect their rights to their house.
Consider a common situation: A mother transfers her house to her son and daughter-in-law (DIL), reserving a life estate for herself. Years later, the DIL files for divorce. The couple has two minor children, and the DIL is seeking either sole possession of the house until the children reach the age of majority or is asking for the house to be sold and subject to equitable distribution. This scenario places the mother's life estate at risk, as her right to live in the house undisturbed could be compromised.
The life estate grants the mother far more than a simple right to reside; it bestows an expansive and nearly inviolable right to undisturbed occupancy throughout her life, regardless of the marital status of the remaindermen, who in this case are the son and DIL.
As a life tenant, the mother's authority over the property is, in many ways, as complete as if she still held full title. She may use the land, reap its profits (such as renting out a portion), and even make substantial changes to the property, provided these don't diminish its overall value. Her dominion extends from the foundation to the roof, from the front yard to the back fence. This control is not contingent on her children's approval, nor can it be curtailed by changing family dynamics. She cannot, however, mortgage the property. Even as her son and DIL navigate the turbulent waters of divorce, the mother's life estate stands, undisturbed, until her last day.
Where the life estate truly showcases its strength is in the tenant's discretionary powers over additional residents. Far from being a passive beneficiary, the life tenant holds a remarkable authority: the right to decide who else may dwell under her roof. In our unfolding drama, this aspect takes on critical importance. As the DIL seeks sole possession of the house, possibly to establish a home without her soon-to-be-ex-husband, she collides with the mother's life estate rights. The mother, as the life tenant, has the unilateral power to invite her son and grandchildren to live with her, creating a multi-generational household that excludes the DIL. This isn't an act of hostility but the exercise of a well-established legal right.
The mother's choices about co-residents aren't subject to approval by the remaindermen-in this case, her son and DIL. She doesn't need their consent, nor can they veto her decisions. If she wishes her son to have a bedroom upstairs, her grandchildren to occupy the finished basement, and herself to enjoy the master suite, that's her prerogative. She could even, if she chose, invite extended family members or close friends to stay, all without requiring input from those who hold the remainder interest. This autonomy stands even if one of the remaindermen objects strenuously-as the DIL likely would in this divorce scenario.
Thus, in the turbulent sea of divorce, where claims of marital property and child-centered arguments surge, the parent's life estate rights remain undisturbed, regardless of the marital status of the remaindermen (those who will inherit the property after her death).
In this situation, the mother needs her own attorney to represent her interests in the divorce as a third party. While her son will have his own lawyer, that attorney's primary duty is to the son. In negotiating the divorce settlement, the son's lawyer might be willing to trade away some of the mother's rights in exchange for concessions from the DIL. This conflict of interest underscores why the mother needs independent representation.
Moreover, by having her own attorney, the mother establishes herself as an independent third party in the eyes of the court. This distinction is critical, as it underscores that her life estate rights are separate from and unaffected by the divorce proceedings. Her attorney can argue that any attempts by the DIL to claim sole possession or force a sale of the house would improperly infringe on the mother's life estate rights.
As the mother's life estate becomes entangled in her son's divorce proceedings, her attorney's first critical step is filing a motion to intervene. This is an assertion that the mother is an indispensable party to the case. Her lawyer should argue that any disposition of the house-be it assignment to the daughter-in-law (DIL) or a court-ordered sale-fundamentally affects the mother's property rights. Therefore, the divorce cannot proceed equitably with respect to the house without her participation.
When the mother reserved her life estate, from the moment the deed was signed, she acquired a vested tangible property interest. Her son's marital troubles should not affect her vested life estate. Thus, the mother's attorney should request sole possession of the house. The DIL cannot force the sale of the house without the mother's consent and without valuing the mother's life estate.
Throughout these arguments, the mother's attorney should repeatedly affirm the mother's rights as a life tenant to have discretion over who resides in the home. If she chooses to have her son and grandchildren live with her, that is a valid exercise of her property right as life tenant.
In some cases, the mother might need to take additional legal steps to secure her rights. Her attorney could file an action to reform or set aside the life estate deed on the ground of fraud, undue influence, or mistake. This might be necessary if the deed's terms are ambiguous or if there's evidence that the mother didn't fully understand the implications when she transferred the property.
Another option is to convert the deed into a will or trust. This approach requires the son and daughter-in-law's consent as remaindermen.
In the interest of equity, the mother's attorney could also propose substituting the grandchildren as remaindermen on the deed. This solution ensures that the property ultimately passes to the mother's direct descendants, preventing the potentially unjust result of an ex-daughter-in-law inheriting a share. Such a modification aligns with the likely intent behind the original transfer-to keep the property within the family bloodline. This remedy, however, also requires the remaindermen's consent.
When a parent transfers property to an adult child and their spouse while retaining a life estate, they're making a significant decision that affects their future security and comfort. If that child later faces divorce, the parent's rights as a life tenant can be jeopardized. In such situations, it's not enough for the parent to rely on their child's divorce attorney. They need independent legal representation to protect their life estate rights.
By engaging their own attorney, the parent establishes themselves as a distinct third party in the divorce proceedings. This status helps insulate their life estate from the couple's disputes over property division. Whether defending against claims for sole possession, resisting a forced sale, or seeking to modify the deed terms, the parent's attorney ensures that their client's right to live out their days in their cherished home remains secure, regardless of their adult child's marital troubles.
Our firm understands the complexities of real property law and divorce proceedings and will work tirelessly to protect your rights. Contact us today if you or a loved one has divorce issues related to life estates. The Law Offices of Albert Goodwin can provide you with personalized guidance and advocate for your rights, ensuring that you receive the compensation you deserve.
If you are a parent in this situation, we at the Law Offices of Albert Goodwin can represent you in protecting your rights to your life estate. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
