Dear Penny: Can My Stepkids Kick Me Out of the House if My Husband Dies?

A woman sits on a stoop with her husband fading away next to her meant to represent his passing.
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Dear Penny,

My question is about living revocable trusts and wills when it comes to marriage and property.

I’ve been married for 18 years. I have two children from the marriage. My husband has two from a previous marriage who are adults in their 30s.

My husband has a trust that was signed in 2008 giving three of the kids (my oldest and the two from his previous marriage) the house upon his death. The house will be divided into thirds of a share. Mind you, our last was born in 2009, so she wasn’t included. The trust states that upon his death they get one-third. 

Does this mean his older two can take over the house and sell it if he dies before I do? The house is paid off, and he had the property before we were married. My name is not on the house, so what are my rights after all these years? 

— F.

Dear F.,

Some states have what are known as elective share laws. These laws allow a surviving spouse who was left out of an estate plan or deliberately disinherited to claim a portion of the deceased spouse’s estate. You’d need to talk to an attorney about what rights you’d have in this situation.

But a far better solution would be for you and your husband to meet with an attorney together so you can create an up-to-date estate plan. He can give you peace of mind that you can continue residing in the home should you outlive him. Plus, it’s typically a good idea to review estate documents every few years or after a major life event, like a marriage or the birth of a child.

Dear Penny

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A revocable living trust can be amended at any time as long as the trust’s creator is able to make financial decisions. I have no idea what your husband’s goals are. But presumably, he doesn’t want to exclude his youngest child from an inheritance or leave his wife homeless upon his death.

Even though your youngest daughter is a minor, your husband could still add her as a beneficiary to the trust. If your husband wants to leave the home to the children after you both pass on while allowing you to live there if he dies first, one option would be a life estate. Basically, he’d create a deed stating that you’re allowed to remain there for the duration of your life. Upon your death, the property would pass to the people named as remaindermen — the four children, in this case.

Again, this is just one option that comes to mind without knowing virtually anything about your situation. It’s vital to consult an attorney, as estate planning can get especially complicated with blended families.

I don’t know why your husband hasn’t updated his estate plan since 2008. But if it’s just a matter of dawdling, make sure you’ve conveyed your fears to him. Most people don’t want a nasty family court fight to play out when they die, nor do they want to leave their spouse destitute.

Try to frame revisiting your estate plans as something you both need to do. This isn’t just about the home. You also want to make sure your wills are up to date and that you each have power of attorney (for financial matters) and medical power of attorney (for health care matters) documents to spell out who should make decisions should either of you become incapacitated.

It’s also smart to review whom you’ve named as beneficiaries on any life insurance policies or retirement accounts from time to time. Sometimes people are surprised to discover that they forgot to remove an ex-spouse as the beneficiary from an old life insurance policy or IRA.

No one likes to think about death, which is why a lot of people put off estate planning. But the time and money it requires are well worth the security it provides to survivors.

Does your balance sheet need a reset? Try these smart ways to organize your finances.

Robin Hartill is a certified financial planner and a senior writer at The Penny Hoarder. Send your tricky money questions to [email protected].