What is a “Homestead Right of Occupancy?”

Recently I took a call that went generally something like this:

“An evil gold-digging young tramp moved in with my elderly father a few years back and eventually convinced him to marry her. Now my dad has passed away and she’s telling everyone she has the RIGHT to live in the house rent free! This can’t be, my father left me the house in his Will, therefore I can kick her out whenever I want, right?”

Unfortunately, the short answer is no, the tramp, err… opportunistic young woman, is right, she has the right to live in the house. She doesn’t even have to pay the mortgage premiums or the insurance on the place.

Sounds like a raw deal, huh?

Well, what she is describing is called the Surviving Spouse’s Homestead Right of Occupancy. This means that, after a married person dies, the surviving spouse is entitled to occupy the homestead of the decedent for as long as he or she chooses to occupy it. This right is completely independent of any ownership right in the property. The spouse simply has to right to live there if she so chooses. Anyone who inherits the home, automatically takes such home subject to this right and cannot force the surviving spouse out of the house, or sell it out from under her. What’s worse, this right survives a remarriage by the surviving spouse.  So not only is this girl entitled to live there, she can now move her boyfriend in to the house and get married to him, just like she told him it would work out when she convinced him to allow her to marry the old guy in the first place. Sad, but true.

However, there is some good news. The surviving spouse does not get a completely free ride. She will be responsible not only for the cost to maintain the property, but also for all property taxes and if there is a mortgage, the interest on such mortgage. So her “rent-free” comment is not entirely accurate.

Finally, a reason to like higher property taxes.