Author: Manal Amro, Principal Solicitor, PA Law
Last reviewed:
Yes. In South Australia, a carefully drafted will may let your partner remain in your home while preserving an inheritance for your children. A right to reside in a will can help achieve this, but only if the relevant property interest forms part of your estate.
For many blended families, the concern is practical: you want your partner to have somewhere secure to live, while ensuring your children ultimately benefit from the home you have worked hard to pay for.
Before creating a right to reside, check exactly how the home is owned.
Watch: can my partner stay in my home and my children inherit it?
What is a right to reside in a will?
A right to reside is an arrangement allowing a named person to occupy a home on specified terms without receiving the property outright. Your will may provide for your partner to live there for life, for a set period, or until a clearly defined event occurs.
The will can also identify who receives the property, your share of it or the relevant sale proceeds when that arrangement ends. For example, you may want your children to benefit equally after your partner’s occupation right finishes.
The terms of a right to reside need to explain both the housing arrangement and the eventual inheritance. A general statement that your partner “can stay in the house” can leave significant questions unanswered.
Can a right to reside work with your property ownership?
Your will generally deals with assets and interests forming part of your estate. The ownership structure can therefore determine whether the proposed arrangement is available.
| How the home is owned | What this means for your estate plan |
|---|---|
| Solely in your name | Your will can generally deal with the home, subject to mortgages, estate obligations and other relevant rights. |
| As tenants in common | Your share generally passes through your estate. Your will cannot dispose of another owner’s share. |
| As joint tenants | Survivorship generally applies: the deceased owner’s interest passes to the surviving joint owner rather than under the will. |
| Solely in your partner’s name | Your will generally cannot give away your partner’s property. Any separate beneficial interest requires individual advice. |
If you own only a share, the plan must also work with the other owner’s rights. A clause dealing with your share does not, by itself, create an unrestricted right to occupy the whole property.
Is a right to reside the same as a life interest?
Not necessarily. A right to reside often focuses on personal occupation. A life interest may provide broader benefits, potentially including the ability to rent out the home and receive income. The actual rights depend on the will’s wording and legal effect.
The Legal Services Commission notes that some arrangements end when the beneficiary stops living in the home, while others continue despite their absence. Read its guidance on life tenancies.
Before choosing an arrangement, decide whether your priority is accommodation in one particular home, more flexible housing support, or an income benefit. Those objectives may require different provisions.
Right to reside: 7 essential checks for your will
Discuss these questions with your solicitor before the will is prepared.
1. How long should the right last?
Specify whether the right continues for life, for a fixed period, or until a defined event. If you are considering conditions involving a new relationship, permanent departure or entry into care, obtain advice on their wording, operation and suitability.
2. Who pays the ongoing expenses?
Identify responsibility for council rates, water charges, utilities, insurance, strata or community fees and any mortgage payments. Also consider whether the person responsible can realistically afford them.
3. Who handles repairs and major works?
Distinguish ordinary upkeep from substantial expenditure such as replacing a roof. The will should address how work is approved, how it is funded and what happens if the resident cannot meet their obligations.
4. What happens during an absence?
A hospital stay or temporary visit to family is different from permanently moving out. Make clear how absence is assessed and whether anyone else may live in the home.
5. Can the home be sold or replaced?
Your partner may eventually need a smaller or more accessible home. Discuss whether the arrangement should allow a sale and replacement purchase, who makes that decision, and how any remaining money is dealt with. These powers should not be assumed.
6. Who manages the arrangement?
Consider who will act as executor and, where needed, trustee. Think about their ability to manage the property over time, keep records and deal fairly with both the resident and the ultimate beneficiaries.
7. What happens when the right ends?
Identify the beneficiaries and their shares, the process for transfer or sale, and what should happen if a named child dies before receiving the property. Clear instructions help avoid uncertainty at a difficult time.
Right to reside example for a blended family
Illustrative example: Alex owns a home in their sole name and has two adult children from an earlier relationship. Alex wants their current partner, Sam, to remain living there after Alex’s death, with the children ultimately receiving the property.
A tailored will might establish a right to reside for Sam and specify when and how the children benefit. It would also need to address costs, repairs, management and changes in Sam’s circumstances.
If Alex and Sam instead owned the home as joint tenants, survivorship would generally give Sam the property. A gift in Alex’s will to the children would not ordinarily redirect that jointly owned interest. The same family wishes can therefore require a different plan depending on the title.
Does a right to reside guarantee my children’s inheritance?
No. A carefully drafted arrangement can support that objective, but it cannot remove every risk. Mortgages, estate debts, the terms of the will, other ownership rights and the estate’s available funds all need consideration.
Eligible family members may also seek a family provision order under the Succession Act 2023 (SA). A right to reside does not automatically prevent a claim, and eligibility to apply does not mean a claim will succeed. The question includes whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life.
See the Legal Services Commission’s explanation of family provision in South Australia. The plan should consider your partner’s needs and your children’s circumstances, alongside your wishes.
What should I bring to a will-planning appointment?
- Your current will and any relevant trust documents.
- The property address and a current title search, if you have one.
- Details of the mortgage and other significant debts.
- Information about your partner, children and other dependants.
- A summary of other assets and funds that might meet property expenses.
- Your preferences about occupation, costs, moving out, replacement housing and eventual inheritance.
If you do not know whether the home is held as joint tenants or tenants in common, ask for the title to be checked before your will is finalised.
Frequently asked questions about a right to reside
Can I leave my house to my children but let my partner live there?
Potentially, yes. Your will must create an effective arrangement that fits the ownership of the home and clearly defines your partner’s rights and your children’s entitlement. An outright gift to the children combined with an informal request may not achieve your intention.
Can my partner rent out the property?
That depends on the arrangement. Permission to live in the home should not be assumed to include permission to rent it out or keep rental income. Ask for this issue to be addressed expressly.
Does moving into aged care automatically end the right?
No universal rule applies. The will’s terms and the nature of the interest matter. Plan for temporary care, permanent relocation and how future accommodation needs might be met.
Can my children sell the house while my partner lives there?
They cannot simply disregard a valid occupation right. Whether a sale can occur, and how it affects that right, depends on the will, ownership structure, trustee powers, any necessary agreement and applicable law.
Will leaving the home outright to my partner ensure it later goes to my children?
No. An outright gift generally makes the property your partner’s to deal with. Your wish that they later leave it to your children is not, by itself, an enforceable restriction. Discuss a structure that gives effect to both intentions.
Plan a right to reside that supports your family
PA Law assists clients in Gawler, Evanston South, Adelaide and across South Australia with wills and estate planning.
If you want your partner to remain in your home while preserving an inheritance for your children, start with a review of the title, your existing will and your family’s needs.
Contact PA Law to arrange an appointment or call 0431 614 696.
Video transcript
Transcript reproduced from PA Law’s existing video guide.
What if I leave my partner in our home, but after they die I want the property to go to my children?
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.
If the property is solely in your partner’s name, you generally cannot gift it. You cannot give away what you do not own.
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.
If you own the property as tenants in common, your will can generally deal with your share.
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.
That could leave your children with no interest in the property. The message?
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.
Explore more PA Law legal video guides.
This article provides general information about South Australian law and is not legal advice. Obtain advice tailored to your property, family and financial circumstances.