September 10

Step kids are taking my house

Cortes Law Firm Oklahoma City Estate Planning Attorney

Step kids are kicking me out of my house!

What do I do? Step kids said I have 90 days to vacate the house that I lived in with their father.

This is a situation that actually comes up a lot. The situation goes like this: a couple they gets married and maybe they're on their second or third marriage.

They may have kids from a previous relationship. They move into the husband's house.

For several years they always talked about the fact that the house is just in the name of the husband. The title of the house just has husband's name.

Sally and Johnny have been married for a long time they keep talking about it but nothing ever happens or maybe they don't ever talk about it. The important part is that Sally's name is not on the title of the house.

Husband Dies First

When Johnny dies Sally is left in the house that she's been living in for years, maybe decades.

The children realize that the house is titled in their father's name. So what do they do you think that they do?

The step kids will contact the wife, their stepmother Sally, and say Sally we've been thinking now that dad's gone we would really like to sell the house you've got 90 days.

Or, Sally now that dad's gone we are going to start charging you rent to live in that house .

Sally is absolutely shocked!

Step-Kids Kicking Me out

This usually happens because there is no last will and testament in place. However, it actually doesn't matter whether there is a last will and testament or not.

If there was a last will and testament, then the husband, Johnny, could have actually said when I pass away I want my house to go to my wife Sally.

But, if Johnny didn't do that, then we have to look at the laws of intestate succession in the state that Johnny and Sally lived. Those laws of intestate succession usually state that a husband and wife if they have been married then the wife or the husband has a right to 50 percent of the estate.

Due to the laws of intestate succession and the marital interests that Sally has in the house, she has at least usually a 50 interest in that house. The step kids can't just kick her out of the house.

Spousal Rights

There is probably an issue of whether she can continue to live there, but again in most states there are laws in place that allow the spouse to claim a homestead. If Sally and Johnny claim that as their marital home then she can usually usually continue to live in that property until her death.

What is the better thing to do? While the absolute easiest thing that Johnny and Sally could have done would have been to title that house correctly. After they got married Johnny should have done some type of a deed usually quit claim deed and transferred the property from his name to his name and Sally.

Instead of just having Johnny Smith on the deed,  it would read Johnny and Sally Smith as the owners of that house. To give her even more protection he could change that house into joint tenancy so it would read something like: Johnny and Sally Smith a married couple as joint tenants with right of survivorship.

That would mean that if Johnny were to pass away first that house would automatically all go to Sally – 100%.

The drawback of that is also that if Sally were to pass away first then all of it would go to Johnny. but Maybe they don't care about that. However, if they're thinking about their estate plan and providing for both of their children from earlier relationships, then they really probably need to think about doing a revocable living trust centered estate plan.

Revocable Living Trust

With a revocable living trust they can outline in the trust that whoever dies first that the surviving spouse has a life estate in that house. The survivor can live in the house for the rest of their life.

Then once they pass away, that house can be divided up however Johnny and Sally want it to be divided up.

Can they kick Sally out of the house? Probably not.

 Sally has a marital interest in that house. She has, at least I think in most jurisdictions, a 50 percent interest in that house and so it's just going to have to be up to the family to decide what they do as a group. However, Sally's going to be allowed to live in that house - at least until she dies.

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