Kicking stepdad out after mom’s death

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Dear Real Estate Adviser,
My mother, who has serious health issues, previously deeded her home to me and is living there indefinitely as we agreed. However, she recently remarried and her spouse lives with her there. If I have a document written up allowing him to remain in the house rent-free for up to six months after she passes away, as my mother has requested, could he claim squatter’s rights?
— Sylvia

Dear Sylvia,
First, I’m sorry to hear of your mother’s illness. It’s good to see you are getting out ahead of this situation. Odds are your stepfather is a pretty good guy, but there are no guarantees he will leave your house after six months for any number of motivations, ranging from financial and emotional reasons to a sense of spousal entitlement.

And no, your mom’s hubby cannot claim squatter’s rights, at least not with any merit. Because you own the house/deed, your stepfather would technically be considered your tenant and squatter’s rights don’t apply to landlord-tenant relationships, even if there is no rent being paid. Also called “adverse possession,” squatter’s rights generally apply to a party or parties who have used a property openly — sometimes a strip of land where a fence or driveway was built at some point because of inaccurately drawn property lines — without objection from the true owner for a period of 10 to 30 years. Your position obviously clears all these tests.

The document you have wisely thought to draw up can explicitly cover this six-month “lease” agreement. It is, I might add, a pretty generous free-rent deal for the husband, who at face value should be more than glad to sign it. If for some reason he does not, then you could start eviction procedures after your mother’s death by carefully following the specific tenant-rights laws and procedures of your state or municipality. You also may benefit from making an inventory of her valuables and personal possessions in the event he tries to remove anything from the house that is not willed to him.

It is worth noting to children of a home-owning parent who has remarried that a home has to be specifically titled or willed to a different person, trust or other entity to prevent its automatic succession to a surviving spouse. Sometimes this is done as part of a prenuptial agreement to keep assets in a family.

I do hope you will treat your stepdad kindly and respectfully in this process — something that can be better done with wise preparation.

Good luck.

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