Can I Elect to Receive a Life Estate Instead of an Intestate Share in New Hampshire?

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.

Detailed Answer

When a person dies without a valid will in New Hampshire, their estate passes to heirs under the state’s intestate succession laws. New Hampshire law does not provide a statutory right to elect a life estate in estate property in place of your intestate share. Instead, here’s what you need to know:

1. Intestate Distribution Rules

• Under N.H. Rev. Stat. Ann. § 560:4, if a decedent leaves a surviving spouse and descendants, the spouse inherits one-half of the estate and the descendants share the other half.
• If there is no surviving spouse but there are descendants, the entire estate divides equally among the descendants (§ 560:5).
• If there are no descendants or parents, the estate may pass to more remote relatives as listed in § 560:7.

2. No Statutory Life Estate Election

Unlike some states that let heirs take a lifetime interest in the family home, New Hampshire’s intestacy statutes do not authorize such an election. You cannot unilaterally choose to convert your share into a life estate.

3. Alternative Protections for the Surviving Spouse

• Homestead Exemption. A surviving spouse (and minor children) may shield up to $120,000 of real estate value from creditors (N.H. Rev. Stat. Ann. § 551:14).
• Family Allowance. The probate court can set aside an allowance—up to $40,000—for the spouse’s support for up to one year (§ 551:19).
• Exempt Personal Property. Certain personal items, like household furniture and a vehicle worth up to $3,000, may pass outside the estate administration (§ 551:5).

4. Private Agreements and Partition Actions

If siblings or other heirs agree, you may negotiate a contract to grant you a life estate in specific real property. Failing an agreement, you can ask the court for a partition action, which may result in dividing property into physical lots or selling it and dividing the proceeds according to your statutory share. The court has no power to impose a life estate without all heirs’ consent.

Helpful Hints

• Review the decedent’s probate file early to understand which assets matter most to you.
• Meet with all heirs to explore whether a life estate agreement makes sense for everyone.
• Consider mediation before filing a partition action to reduce legal fees.
• Keep records of any payments you make on property taxes or maintenance if you pursue a life estate agreement.
• Consult a probate attorney to guide you through any court filings and negotiations.