Can my partner stay in my home and my children inherit it? In South Australia, a carefully drafted will may give a partner a right to reside while preserving the property for children—but the available options depend first on how the property is legally owned.
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Plain-English summary
A will can sometimes allow your partner to remain living in a home for life, or until a clearly defined event occurs, while providing that the property later passes to your children. This arrangement is often described as a right to reside or a life interest. It needs careful drafting so everyone understands who pays expenses, maintains the property, insures it and what events bring the right to an end.
The starting point is the property title. Your will can only control property, or an interest in property, that forms part of your estate. If the home is owned jointly, the ownership structure may determine what happens before the terms of the will are considered.
Can my partner stay in my home? Check how the property is owned
Property solely in your name
If the home is solely in your name, your will may grant your partner a right to reside and provide for the home, or the proceeds of sale, to pass to your children later. The will should address practical matters such as rates, insurance, repairs, absence from the property and any terminating event.
Property owned as tenants in common
If you own the property as tenants in common, you can generally deal with your share under your will. A tailored estate plan may protect your partner’s housing while preserving your share for your chosen beneficiaries. The precise outcome depends on the title, the will and the surrounding circumstances.
Property owned as joint tenants
If you own the property as joint tenants, the right of survivorship generally applies. When one joint tenant dies, that person’s interest passes automatically to the surviving joint owner and does not ordinarily pass under the will. That can prevent the will from preserving the deceased person’s interest for their children.
Property solely in your partner’s name
If the property is solely owned by your partner, you generally cannot gift it in your will. In simple terms, you cannot give away property you do not own. Other estate-planning strategies may need to be considered after legal and financial advice.
Five issues a right-to-reside clause should address
- Duration: whether the right lasts for life or ends on a specified event.
- Outgoings: responsibility for council rates, insurance, utilities and other costs.
- Maintenance: who must keep the property repaired and in reasonable condition.
- Absence: what happens if the partner permanently leaves, enters care or no longer uses the home as their principal residence.
- Final distribution: when and how the property or sale proceeds pass to the children.
These clauses should be tailored to the family, property and ownership structure. A poorly defined arrangement can create uncertainty or disputes between the resident partner, executor and ultimate beneficiaries.
Common questions about a partner’s right to reside
Can my partner stay in my home for life?
Yes, a properly drafted will may give a partner a right to reside for life, subject to the ownership structure and the terms chosen for the arrangement.
Can my partner stay in my home until they repartner?
A will may provide that the right ends on a clearly defined event, such as permanent departure, entry into residential care or repartnering. The event and evidence required should be stated precisely.
Can my partner stay in my home if we are joint tenants?
The right of survivorship generally means the surviving joint tenant becomes the owner automatically. The will may therefore have no control over the deceased owner’s former interest.
Can my partner stay in my home without becoming the owner?
A right-to-reside clause can distinguish the right to occupy from ownership. The will should also explain the resident’s responsibilities and the executor’s powers.
Can my partner stay in my home and my children inherit it later?
That may be possible when the property or relevant share forms part of your estate and the will is carefully structured. Individual advice is important because family, property and financial circumstances differ.
Accurate video transcript
0:01 What if I leave my partner in our home, but after they die I want the property to go to my children?
0:09 A carefully drafted will may give your partner a right to reside for life, or until a specified event, without giving them the property outright. But first, check the title.
0:24 If the property is solely in your partner’s name, you generally cannot gift it. You cannot give away what you do not own.
0:30 If it’s solely in your name, your will can grant your partner a right to reside, with the property ultimately passing to your children.
0:45 If you own the property as tenants in common, your will can generally deal with your share.
0:51 But if you own it as joint tenants, then the right of survivorship applies, which means when you die, your interest passes automatically to the surviving owner, regardless of what your will says.
1:03 That could leave your children with no interest in the property. The message?
1:11 Before drafting your will, check exactly how the property is owned. The right estate-planning structure can protect your partner’s home and your children’s inheritance.
Get advice about your will and property
PA Law can review the property title, discuss your objectives and prepare a South Australian will designed for your circumstances. If you want your partner to have a secure place to live while protecting an inheritance for your children, obtain advice before relying on a standard clause or informal family understanding.
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This page provides general information only and is not legal advice. Legal advice should be obtained for your particular circumstances.