Let’s say an unmarried couple decide to buy a house together. Like most couples, no will but remember they are unmarried. Both have children from a previous marriage. At this point it might diverge into minor children with other parent still alive or minor children with only one parent alive (e.g. a widow or widower) or a child who reached their majority. One of the couple dies leaving their child owning, and for the purpose of the GQ, responsible for half the mortgage. The child cannot pay their half and the surviving partner does not want to sell the house & split the equity. The obvious answer is the surviving partner pays all of the mortgage and the lender is happy but for whatever reason, they do not want to do this.
What are the options?
On a similar note - an unmarried couple have a child together. One partner dies. Can the surviving partner as the parent of the minor “sell” the minors half to themselves? Would they have any legal duty (you can’t steal from your kids) criminal or civil to pay the child half of the equity to buy them out?
The situation your describing seems like it would be a joint tenant one so it would have a right of survivorship. Meaning the person who didn’t die would get the entire house so having a minor child wouldn’t matter.
I am joint tenants on a home with my son and his wife. It was explained to me that upon my death he will simply take over sole ownership with his wife as we intended it to be. No other siblings will be involved.
As noted above, typically this would be a joint tenancy with right of survivorship, in which the property would simply go to the survivor. However, it is also possible for it to be held as a tenancy in common, in which the separate interests are heritable.
We can imagine a situation in which one parent dies (let’s say the mother) and had a child from a previous marriage who inherits her interest in the property. As a practical matter, either the kid is in the custody of the stepfather or is in the custody of a third party, and if the latter then it would be in the kid’s interest for the property to be sold. If the former, then it’s the stepfather’s responsibility to provide the kid with a place to live. If the kid has no other resources, then, the stepdad will simply have to pay the mortgage.
If the kid does have other resources, can the stepfather look to those resources to pay half the mortgage? I’m not sure. I don’t think it’s a settled question.
In the second question, if the surviving parent is going to buy out the child’s interest, he would be well-advised to get an appraisal, and court approval might be needed. If he simply buys at the price he wants to pay, the child can subsequently challenge this interested transaction. The statute of limitations for the challenge will not start to run until the minor child comes of age.
Others have discussed joint ownership with survivor getting the entire house. So this post concerns when that is not true.
Almost certainly the bank mortgage has been set up so that the joint owners are each responsible for the entire mortgage. So if payments are not made, the bank would repossess and sell the house and divided the remaining proceeds.
Also I don’t believe in any state you can be forced to take an inheritance, so the surviving “spouse” cannot force the other heirs whether or not they are minors to pay. Therefore, the surviving spouse must either pay the entire mortgage or settle up somehow – generally it would be better not to involve the bank in this.
If the surviving “spouse” does pay the entire mortgage, I’m not sure what that does to ownership claims. Presumably the fair thing to do would be to adjust the proportions of those claims by both the mortgage payments and imputed value of living in the house. Whether or not a court would come to this “fair” decision if the two claimants did not settle, I cannot guess.