Legal Q&A:can my second husband still live in our home if I leave my share to my children?

I want to make sure my two children from my first marriage get an equal share of my property if I die. But I don't want my current husband homeless. Can I make sure he lives there for the rest of his life?

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Question: I own my home jointly with my husband, and we have been married for almost 20 years. I have two children from my previous marriage — my first husband passed away suddenly — but none from this marriage. 

When I die, I want my share in our home to pass to my children but I would like my husband to be able to live in the property for the rest of his life. What actions do I need to take?

Answer: Is the property held by you as joint tenants, or as tenants in common? Assuming that your title to your home is registered at the Land Registry, you can search there to see whether there is a restriction on the title indicating that the property is held by you as tenants in common. 

If there is no such restriction, then you are likely to hold the property as beneficial joint tenants. To deal with the property after your death in the way that you wish, you and your husband must hold it as tenants in common.

If your home is held by you as beneficial joint tenants, you will need to sever the joint tenancy. Doing this will allow you to deal with your individual share of the place in your will. 

Once you are holding the property as tenants in common, your will can be drafted to grant your husband a life interest in your home — thereby allowing him to remain there for the rest of his life — and also to provide for your interest in the place to pass to your children following his death.

It would be wise for you to seek legal advice if it is necessary to sever the joint tenancy, and also for the drafting of your will.


If you have a question for Fiona McNulty, please email or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually, but we will try to feature them here. 

Fiona McNulty is a legal director in the private wealth group of Foot Anstey.



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