‘Dear Esq, My now 82 year old mother and her second husband made out two individual trusts, each leaving me half of the valuable house they owned. (He had no children.) It was their intention that I inherit the house and the two separate trusts were so I would receive the maximum inheritance tax deduction by inheriting from two individuals rather than one. My mother’s second husband died and she is now remarrying and plans to change her trust to leave her half of the house to her new husband upon her death. She says her former husband’s trust cannot be broken, so I am still in line to receive half of the house. My question is: if my mother dies before the third husband, and he and I both inherit half of the house – he from my mother and I from the second husband’s trust – can I require that the house be sold and the profit divided in two and distributed? My concern is that I could be stuck with 1/2 of a house that I cannot sell because the third husband owns the other half of it and is living in it. Also my mother is making noises about writing something in about the third husband the right to live in the house as long as he lives if she predeceases him. Can she do this if I am to receive half of the house from the second husband’s trust upon her death? It seem to me she should not be able to give someone the right to live in a house that she can only bequeath half of. Thank you in advance.’
Your first question is actually fairly simple, and the short answer is yes. The longer answer is, there is a type of lawsuit called a partition action, which is designed specifically to handle the situation you are describing, where more than one person own something and they can’t (or just don’t want to) get along. The details may differ from state to state, but in general there is a way out if you co-own something and don’t want to continue co-owning it.
Your second question is a little more complicated. Let’s start at the beginning: I assume that Mom and Husband 2 each owned half of the house. I also assume that when Husband 2 died, his half of the house
was locked into his trust, I’m guessing for Mom to use during her lifetime, then to you.
If that’s true, then your Mom only owns half the house now. And, just speaking generally, she can change her estate plan any way she likes, but it will only affect what she owns: half the house.
However, she doesn’t own half the house in the sense that she owns the left half and someone else owns the right. She has what in law is called an “undivided interest,” meaning that she has a 50% interest in all of it. It’s not unlike when Husband 2 was alive, and they each had a 50% undivided interest–they both could use the entire property, but only get 50% of the value if it’s sold, or to leave to their heirs.
So, can your Mom leave instructions in her estate plan that Husband 3 be allowed to live in the property for the remainder of his life? Yes, but those instructions only affect what she owns–a 50% undivided interest. You would have the other 50% undivided interest, and could use it as well. Not that it sounds like you would want to live with your future stepfather, but you could do that, or could rent out your 50% interest (possibly to him), or other options that you could work out.
Now, if your Mom is amenable, you could work out some deal in advance where, for example, Husband 3 is to buy you out at some agreeable price. But if not, you do have the escape valve of a partition action. Have a brief chat with a local real estate attorney to be sure there aren’t any hitches in your local law; have him or her review Husband 2’s trust to be sure you understand how it works; and smile in the wedding photos.