What legal rights does a spouse have to continue to live in a house, in which their deceased spouse was part-owner?

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What legal rights does a spouse have to continue to live in a house, in which their deceased spouse was part-owner?

When my paternal grandparents died 20 years ago, my parents moved our family into my grandparents’ home. My parents paid the property taxes, had renovations done, and physically occupied this home for the past 20 years. My father died in December and his sister wants my mother to leave the property. What legal rights does my mother and/or her children have to the home? Is she legally required to leave the home?

Asked on November 26, 2010 under Estate Planning, South Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

How was title to the property held? If it was a "joint tenants with right of survivorship", then upon your father's death, your aunt would have become the sole legal owner by operation of law.  In which case your mother would probably be viewed as a tenant and her financial contributions would be deemed a form of rent.  Accordingly, your mother could be evicted from the premises.  Of course this assumes that there was no written agreement to the contrary between your father and your aunt.  If so, then the terms of that agreement would control.  So, for example, if your aunt agreed to reimburse your parents for any out-of-pocket expenses, then you mother would be entitled to that.  Also, there is something in the law known as "unjust enrichment".  This is a remedy that a court can grant based on the equitable principle that one person should not benefit at another's expense.  Accordingly, the person profiting should make restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained.  However this remedy is only available in the case of a mistake in fact, law, or the like.  You did not indicate this to be the situation in your mother's case.

If you father and aunt held title to the property as "tenants-in-common", then upon your father's death your mother (and possibly you and your siblings) would have taken title to his share of the property (depending on the terms of his Will or state law if he had no Will).  In such a case, as a co-owner, your mother could not be evicted.  However your aunt, as the other co-owner, could go to court and force a "partition" of the property. In the case of a single family home this would result in a court-ordered sale.  First, however, your mother would be given the option of buying out your aunt's interest in the property for fair market value.

As you can see, this can all get complicated.  Without more details its hard to advise further.  At this point, your mother needs to sit-down with a real estate and/or probate attorney and go over all of her options.


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