My husband will leave our home to his two children, can I carry on living here if he dies first?

My husband and I moved nearly a year ago We moved from the house that he owned with his first wife, who sadly passed many years ago.

When we first got together it was agreed that his house if he died would be split between his two children and I could live there until I pass.

When we moved home we put it in my husband's name as it was his money that paid for the house.

His brother-in-law got him and his children to sign documents when it was his other house but he's not sure what it was he signed.

Do we need to get something in writing so that if he died I could live here until I have passed.

I agree with everything they say but I am worried about what will happen if there is nothing in writing so to speak and his children change their mind. What is it we need to do?

Property concern: Can second wife stay in the house if husband dies first (Stock image)

Tanya Jefferies, of This is Money, replies: It is common for a spouse to leave a property or their half of it ultimately to children from a former marriage, but arrange for their present husband or wife to remain there should they live longer.

This is a compromise generally regarded as fair, and if everything is set up properly by a lawyer it can work well.

It prevents the children evicting their stepmother or father, or the surviving spouse cutting stepchildren out of their inheritance.

You are right to question though whether your recent house move means any previous legal arrangements your husband made along these lines still stand up.

We asked a lawyer experienced in these matters - and dealing with the unfortunate disputes that can arise if things go wrong - to answer your question.

She explains in detail what steps to take below, but it comes down to finding the relevant documents and taking them to a solicitor who can check them over and advise on the best course of action.

Rachel Waller, partner in the wills, trusts and estate dispute resolution team at Excello Law, replies: A great deal depends on the documents signed for the former property, so these should be obtained and reviewed first.

Rachel Waller: Paperwork relating to the former property may not protect you in the new home

Nevertheless, the present arrangement should be recorded formally.

An informal understanding may reflect everyone’s current intentions, but it does not provide the certainty of a properly drafted document.

Family circumstances and relationships can change, as you suggest, and paperwork relating to the former property may not protect you in the new home.

First, establish exactly what was signed previously. 

Your husband should obtain the documents arranged by his brother-in-law, the title registers and conveyancing papers for both properties, and any existing wills.

The earlier paperwork might be a declaration of trust, an agreement, a will or something else.

Its precise wording will determine whether binding rights were created and whether they applied only to the former house, its sale proceeds or a replacement property.

Do not assume that an arrangement concerning the old house transferred automatically when it was sold; often it will not.

As the new property was bought with your husband’s money and is registered solely in his name, the ownership position and his will should be reviewed.

If your husband died without suitable provision, his existing will or the intestacy rules would apply.

Although you may inherit as his spouse, that would not necessarily guarantee a lifelong right to remain in this particular home.

You might seek reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, but proceedings would be costly and stressful, with no guaranteed outcome.

Court action is a last resort, not a substitute for planning.

What is typically arranged in these circumstances?

The usual solution is a new will giving you either a life interest or a carefully drafted right to occupy the home, with the property or its value passing to the children when your interest ends.

A life interest can provide wider benefits; a right of occupation may be confined to providing a home.

The right choice depends on the full circumstances, finances and your husband’s wishes.

The drafting should address practical matters: who pays council tax, utilities, insurance, repairs and major works; whether any mortgage may remain; whether the property can be sold and a replacement bought; whether you can require or veto a sale; and what happens if you move permanently, enter residential care or no longer wish to live there.

It should appoint suitable trustees, protect the children’s eventual entitlement and cover the possibility of a child dying first.

A lifetime trust or declaration of trust could also be considered, but may bring additional administration and conveyancing consequences.

If a trust of land is created, an appropriate restriction may be needed at HM Land Registry.

Registration can protect an arrangement, but it cannot cure defective drafting.

What action should you and your husband take now?

You should both take detailed legal advice based on all the documents and circumstances.

In this area, the detail can make or break the intended outcome: the property description, ownership, trustee powers, occupation terms, earlier promises and interaction with the wider estate all matter.

Your husband may need independent advice if your interests diverge.

You should also take advice from a suitably qualified tax adviser before deciding upon or implementing any arrangement.

A life interest, right of occupation or lifetime trust may have inheritance tax, capital gains tax and residence nil-rate band consequences.

In practical terms, retrieve the earlier papers, obtain current title information, review your husband’s will and ask a private client solicitor to draft tailored provisions.

Securing your home while preserving the property ultimately for the children is achievable, but it should be appropriately recorded.

Once the arrangements are settled, consider explaining them to the family so everyone understands what is intended.