Though it is not a pleasant thought to have, you may not be able to help to shake the possible scenario that you may predecease your spouse. With this occurrence goes your inability to continue ensuring their emotional well-being, financial stability, and even their housing security. Well, a way to somewhat ease these negative hypotheticals is to set up an ironclad estate plan. With that being said, please read on to discover what estate planning tools you can utilize to ensure that your loved ones get to stay living in your house even after your passing, and how one of the seasoned Putnam County asset preservation attorneys at The Law Office of Andres D. Gil, PLLC can also ensure your plan causes the least potential conflict as possible. 

How can I ensure that my spouse can stay in my house after I die?

Rest assured, in New York State, your spouse will maintain strong legal rights if they survive you. But to almost ensure that they will get to remain in your home, your estate plan should include either joint ownership with right of survivorship, tenancy by the entirety for married couples, or a trust structure. The specifics of these strategies read as follows:

  • Joint ownership with right of survivorship: upon your death, your share of the house will automatically pass to your spouse as the surviving owner outside of probate. 
  • Tenancy by the entirety for married couples: your surviving spouse may be immediately transferred the title of your house upon your passing, while also receiving protection from your personal creditors during your lifetime.
  • Trust structure: your surviving spouse may be granted a lifetime right to live in your house (i.e., life estate or trust occupancy provisions) and subsequently pass it down to your children after their death.

How can I leave my house to my children instead of my spouse without causing conflict?

You generally cannot disinherit your spouse without consequence. According to New York Estates, Powers & Trusts Law, a surviving spouse has a right of election and may claim up to $50,000 or one-third of your net estate, whichever value is greater. Of note, this is regardless of the instructions you left behind in your Last Will and Testament document.

So, if you write that your house should go to your children, your surviving spouse may still assert their elective share and ultimately force a sale or financial settlement. Even though you may be attempting to protect them from the financial burden that comes with upkeeping the house, at the end of the day, you cannot stop them from exercising their legal right. 

With that being said, to reduce the potential conflict between your surviving spouse and children, you may plan to equalize your estate shares as much as possible. This may entail compensating your spouse with most of your other assets that are equal or higher in value to your house. Or, again, there is always giving your spouse a lifetime right in a trust document.

There is no shame in asking for help, especially when you are dealing with something as serious as a legal matter that could affect your physical, emotional, and financial well-being. So please retain legal assistance from a competent estate planning attorney in Putnam County. We will happily lend a hand.