I own my home tenants in common with my spouse. The deed also has a life estate clause that upon the death of one the other gets to live there until death. We also have a post nuptial that assigns all personal assets to the individual and denies any claim to the others assets, income, etc. Can the interest in the tenancy in common be left to the children of a spouse or will survivorship take priority? And what happens after divorce if the house is not sold? Will interest become a true tenants in common?
1. don't be confused here -- "tenants in common" (TIC) makes survivorship irrelevant....you are thinking "joint tenants" (JT) where the survivor would own 100% upon death of first to die.
2. TIC means each of you own 50% and it is a divisible asset conveyed via will or by laws of intestacy (if now will).
3. the post-nuptial is irrelevant as it would only be operative if a divorce occurred. Since the marriage was still intact at time of death then this contract is of no force and effect.
4. The life estate language on the deed is akin to a will provision and in fact would override a will that said anything to the contrary as the deed trumps a will.
5. The life estate granted to surviving spouse in the 50% portion owned by deceased spouse will carryover to the beneficiaries who inherit the 50% portion owned by deceased wife's estate (i.e. is an encumbrance against the title for the half interest).
6. Finally, the 50% TIC of deceased spouse will go to beneficiaries which could include the spouse, children or any other party the decedent states in a will.
My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.
Wow, you need to spend some time with either the attorney who created this scheme or with an experienced real estate/estate planning attorney before you and yours wind up very disappointed. You should take ALL of your estate planning and real estate documents with you to explain the thought process that went into this plan, then explain what you think or hope the plan will do, and then hopefully you can get a good idea of what will really happen given your present life situation - in English. I wish you well.
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