Today many people are living together in a second or third relationship and they each have children from a previous relationship.


One of the issues that arises is how long can the surviving spouse remain in the family residence after the death of the other spouse? This is an important issue as the family residence can be the major asset and at some point the spouses want their children to receive their share of the equity in the family residence. On the other hand neither spouse wants to have to leave their home as soon as one spouse dies.


The solution is to provide both a will and a cohabitation or marriage agreement that sets out specifically the number of years the surviving spouse can remain in the house. It is also important that both the will and the cohabitation agreement state the following:


  • Who will pay the property taxes and house insurance – often the estate will pay one half and the surviving spouse will pay one half
  • Who will pay for utilities
  • Who will pay for minor and major repairs and maintenance
  • Who will pay the mortgage
  • Can the surviving spouse remain in the house if they are living with a new partner
  • When the surviving spouse vacates who will list the house for sale
  • Does the surviving spouse have an option to purchase the house and if so on what terms


These and other considerations have to be spelled out very carefully so that both the surviving spouse and the executors of the deceased’s estate have very specific directions. It is also very important that the title of the family residence not be registered in joint tenancy but as tenants in common. If it is in joint tenancy the house may pass to the surviving spouse on the death of the first spouse and the provisions of the will and cohabitation agreement may not apply.


Deborah Todd Family Law Victoria

Deborah A. Todd