Unlikely Situation

ThirdMan

I think I've come across an old wives tale. Perhaps someone can confirm it for me.

A married couple with kids buy a house. The husband has children from a previous relationship. The husband and wife don't make a will. The husband dies. Therefore his children from a previous relationship have a right to come and live in the marital home, with the widow and her children.

This was advice given by a senior civil servant. Surely this is incorrect. I suspect the 'previous children' may have an interest in the property, but to what extent? Coming and living in the family home seems like pure fantasy?

Thanks.

camphor

This "senior " civil servant sounds like a genius. Does he do stock market tips as well?

nuac

camphor wrote: »

This "senior " civil servant sounds like a genius. Does he do stock market tips as well?

Has he any prognolstications on the All-Irelands Hurling and Football - the odds aren't good, but if we had this guys inside track, who knows?

ThirdMan

camphor wrote: »

This "senior " civil servant sounds like a genius. Does he do stock market tips as well?

Well she holds a relatively senior position within my county. So perhaps 'senior' in a national sense is the wrong word for her.

camphor

ThirdMan wrote: »

Well she holds a relatively senior position within my county. So perhaps 'senior' in a national sense is the wrong word for her.

I take this not so senior civil servant is old and married.

coylemj

camphor wrote: »

I take this not so senior civil servant is old and married.

And her husband is still alive.

Peregrinus

First of all, why is anyone putting this question to "a senior civil servant"? Senior civil servants do lots of important and useful jobs, no doubt, but arbitrating family disputes over property is not one of them. And however senior and however civil and however serviceable she may be, none of these qualities suggest that her views on this question carry any more authority than those of a bloke you meet in the pub.

Where a married couple buys a house, it's usually as joint tenants, in which case on the death of one spouse the house becomes the sole property of the other, by right of survivorship. So if this married couple bought the house as joint tenants, the widow would now be the sole owner.

However, although joint tenancy is the most common arrangement, one circumstance where houses are often not held in this way is where one or both spouses has been married before, and has another family, and they need to keep their property interests separate so that each spouse can use their property to make provision for the (different, though possibly overlapping) groups of people for whom they have a responsibility. In this case the spouses may buy a house as tenant-in-common, not necessarily in equal shares. Where a couple holds property as tenants in common, when one of them dies his or her share forms part of the estate, and goes to whoever is entitled under the will, or under the intestacy rules, if there is no will.

So let's assume that was the case here. Suppose that Mr X held a 50% share of the house as tenant in common. He dies, without making a will, and is survived by his wife and his kids. Under the intestacy rules, two-thirds of his share in the house goes to his widow (bringing her total share in the house to 5/6ths) and the remaining one-third of his share is divided equally among his children - including, if there are any, the children of his second marriage. So in this scenario the maximum share that the children of his first marriage might have is a one-sixth interest between them.

Does that one-sixth interest give them a right to live in the house? No, it doesn't. The co-owners - that's the widow and the children of the first marriage (acting by their guardian if they are under age) need to agree how to manage and use the property that they jointly own. If they absolutely cannot agree, they end up in court. The court is not going to order the widow to take the children in with her; they might order her to buy out the children, or they might order the house to be sold and the proceeds divided in proportion to everyone's share.

The position might be different if, when the man died, his kids were minors and were already living in the house with the man and his second wife. I don't think the court would look favourably on her evicting them. But the OP suggests that this is not the case; the kids are already living somewhere else, and it's not suggested that the death of their father causes the collapse of whatever living arrangement is already in place for them.

Grolschevik

ThirdMan wrote: »

Well she holds a relatively senior position within my county. So perhaps 'senior' in a national sense is the wrong word for her.

Peregrinus wrote: »

First of all, why is anyone putting this question to "a senior civil servant"? .

You never know, could be the county registrar!

Addle

Grolschevik wrote: »

You never know, could be the county registrar!

Then she would be a public servant and not a civil servant.

if a man was divorced with two children from his first marraige then got married again, had three children, does his first two children have a claim on his new family home if something happened to him?
if he bought his second family home himself and his second wife was not on the mortgage, could the older two children have a claim?

( sorry maybe im taking this thread over )

Peregrinus

bubblypop wrote: »

if a man was divorced with two children from his first marraige then got married again, had three children, does his first two children have a claim on his new family home if something happened to him?
if he bought his second family home himself and his second wife was not on the mortgage, could the older two children have a claim?

( sorry maybe im taking this thread over )

Depends on a lot of things.

Basically, his children from his first marriage remain his children, and they have the same rights in respect of his estate as the children of his second marriage.

If he makes no will, all his children will rank as next of kin and (along with his suriviving wife) they will all claim a share in his estate on intestacy.

If he does make a will, any of his children, from either marriage, can challenge the provision (if any) made for them under the will on the grounds that their father has failed in his moral duty to provide for them. The outcome of such a challenge is difficult to predict since it depends on a huge range of facts and circumstances such as how well set up the children are in life, what their needs are, what the father did for each of them while he was alive, what other moral claims the father had to take into account, etc, etc. In general it is hard for an adult child to succeed in a claim of this kind. But all the children, of either marriage, have the right to bring such a claim.