Q: My mother passed away several years ago and my father has recently started living with a woman. It seems unlikely they will marry. If he should pass away, what rights will she have to his home? How will we get her out if she won’t leave?
A: This really isn’t that uncommon of a problem. Older folks often times cohabitate without the formalities of marriage. Maybe “often” is stretching it a bit, but I have come across it on numerous occasions in my career.
I think your concern involves the concept of the common law marriage. A common law marriage can occur when a man and woman live together as husband and wife for a certain length of time and, in most cases, present themselves as husband and wife.
If the requirements are met, some states recognize the relationship as a common law marriage and grant the parties certain rights normally reserved for married couples. These rights often times include the right to inherit a spouse’s property. It is this possibility that worries a lot of families when a parent cohabitates with another person.
There are about 10 states that still recognize common law marriages. Fortunately, Indiana is not one of them.
Unless your father and his companion legally marry, neither will acquire inheritance rights to the other’s estate. That will of course change if they eventually marry. However, until they take that step, inheritance rights are not conferred on them.
Either of the parties can change this situation by including the other in their estate plan. For example, your dad could include a provision for his companion in his will or trust. He could add her name to the title of the house or name her a beneficiary on an account or even the home by using a transfer on death deed.
However, until the parties actually marry or take an affirmative step in their estate plans, they have limited rights to the other’s property.
As for getting her out of the home after you father dies, you may face the difficulties that any landlord faces when trying to eject someone. You may have to go through the formal process of filing an ejection action and getting a court order forcing her to leave. To be honest, I’ve only had to do this a handful of times. Usually a phone call or a letter from the attorney gets the unwanted guest moving.