"Life Tenancy"? [complicated Q]

[gringosabroso]

The British common law & all American states [I think] recognize a form of ownership of R E known as a "life estate" or "life tenancy".

* For example if John Smith owns a home in N.Y. in his name alone, has a 2nd wife [Maria Smith] & 2 children by a 1st marriage [Philip & Jane], he may leave the R E in his will, or deed it while he is still alive to:
"Maria Smith for the term of her natural life; upon the death of Maria Smith to Philip Smith and Jane Smith, in equal shares, tenants in common."

* Maria is termed the "life tenant"; Philip & Jane are termed the "remaindermen".

* Upon the death of Maria, Jane or Philip can file a copy of Maria's death certificate @ the local Registry of Deeds; the R E then belongs to Jane & Phlip, in equal shares. This is a useful & widely used American estate planning tool

* [to get to the point] Is a life estate, etc., as outlined above, used, recognized & / or legal in the DR? Used frequently? Comments? Suggestions? Potential problem areas? Thank you.

[HOWMAR]

It may be complicated by Dominican inheritance law. In the case of 2 children, the present wife is entitled by law to 1/3 of the husband's estate. This cannot be changed by a will to the contrary. Also, any gift before the husband dies in excess of 25% of his estate will be deemed an illegal gift. So he cannot title the property to the kids before his death.
Not a lawyer, but that is my understanding of Dominican law.

[Fabio J. Guzman]

Howmar's post is not entirely correct. You will find below a copy of something I posted some time ago.

Spouses are not regular heirs to each other under Dominican law. If a spouse dies, 100% of the assets go to the children. If there are no children, 100% of the assets go the siblings and the parents. If there are no siblings or parents alive, 100% of the assets go to other relatives. Only in case there are no relatives up to the 12th degree will the wife become an heir.

It's all a question of blood. It reminds me of an inveterate bachelor in my hometown of San Francisco de Macoris who when asked why he didn't get married always answered with this question: Why should I support somebody that's not even related to me?

Things are not as bad as they seem, however. First, it is possible to leave assets to your spouse by writing a will, although there are restrictions on what you can give him/her (only 25% of your assets if you have three or more children, no more than 33% if you have two children, no more than 50% if you have a child). Second, 99% of Dominican marriages are governed by community-property law. When a spouse dies, the surviving spouse is considered the owner of 50% of matrimonial assets. This 50% is not considered to be a part of the estate and therefore no estate taxes apply. The remaining 50% is split in equal parts among the children.

[gringosabroso]

Dear Fabio,

Thank you for your extremely thorough response.

* To change the above hypothetical, suppose that John Smirth is not legally married to his Dominican paramour; they have lived together for 9 years; she calls herself 'Maria Sanchez Smith'; John & Maria have no children together; nor have they anopted any.

* John Smith has never objected to Maria's use of "Smith".

* John has the same 2 children.

* Can John under DR law leave his / their house in a life estate to Maria, with the children 'remaindermen'? The name on the titulo is "John Smith" period.

* Thank you for your patience & lawyer-like attention to detail. Very professional.

[Fabio J. Guzman]

This gets a bit complicated because details are needed on all your assets to calculate what portion of them would be left to your companion, even as a life estate.

On a related matter, the Supreme Court rejected recently the claim made by a surviving companion to 50% of her deceased companion's estate. The claimant argued that her lifelong relationship should be equivalent to marriage under community-property rules.