In lieu of an intestate share or elective share, a surviving spouse may choose to take a life estate in one-third of the value of all real property owned by a deceased spouse during the marriage. A life estate is not the same as full ownership; rather, a life estate is an interest in land that lasts only for the life of the holder.
If the deceased spouse owned the couple’s primary residence, the life estate election may also include it, regardless of how much the primary residence is worth (in other words, even though it might exceed one-third of the total value of real property). However, the surviving spouse must specifically elect to include the primary residence, and the surviving spouse must be occupying the residence at the time the deceased spouse passed away. This particular provision also includes full ownership of all household goods and furnishings in the primary residence.
The election to take a life estate is effective when the surviving spouse files notice with the clerk of the superior court in the county where the estate is being administered. However, there are several different time constraints that apply depending on the individual facts of the case. If this is an option that a surviving spouse is considering, it is best to meet with an attorney to discuss the process sooner rather than later.
Casey N. Ferri
Attorney at Law