Life estate
A life estate is an interest in land that lasts for the length of a person's life, after which the land passes to whoever holds the remainder. The person holding it for life is the life tenant, and the person entitled afterward is commonly called the remainderman.
A deed or will that names one holder for life and another after
The arrangement this entry follows starts with a single instrument: a deed or a will that gives land to one person for life and names someone else to take it when that life ends.
The Virginia statutes read for this entry work with the arrangement without defining it. Va. Code 55.1-106 opens on the case where an interest in real estate "is disposed of by deed or will for life, with a limitation in remainder over" and goes on to say what happens when that same instrument hands the life tenant more power than the life itself. The definition at the top of this entry is plain usage, not a statute's wording; the statutes supply rules for particular moments along the way.
A freehold estate in land can be conveyed in Virginia only by deed or will, so the wording of that document is the first place to look for who holds for life, who holds the remainder, and what powers go with each. Reading it for a particular tract is an attorney's work. How deeds pass land and why recording matters is covered in what a Virginia deed does.
Selling, borrowing against, or losing the land while the life tenant lives
The middle of the arrangement is where the practical questions sit, and three Virginia statutes speak to them.
A power to dispose, written into the same instrument
Some instruments give the life tenant, expressly or by implication, a power to dispose of the property absolutely. When one does, the remainder is not lost wholesale:
the limitation in remainder over shall not fail, or be defeated, except to the extent that the life tenant lawfully exercised such power of disposal
Va. Code 55.1-106
The same section adds that a deed of trust or mortgage signed by the life tenant is not an absolute disposition of the estate unless the estate is actually sold under that deed of trust or mortgage.
Default or surrender by the life tenant
If a tenant for life of land makes default or surrenders, the heirs or those entitled to the remainder may be admitted to defend their right before judgment, or may assert it after judgment without prejudice from the default or surrender.
Taxes assessed in the life tenant's name
Land assessed in the name of a life tenant may be sold for delinquent taxes, provided the owner of record or that owner's heirs are made parties to the proceeding for sale.
All of this describes owners who hold one after another. Owners who hold side by side, at the same time, are a different arrangement with different rules, set out under tenancy in common.
That year's tax bill, the remainderman, and the sale that may follow
When the life tenant dies, the life estate ends and the remainder takes over. One loose end the Code ties up is the tax bill for the year of the death.
Suppose that year's taxes were assessed in the life tenant's name and someone other than the remainderman pays them. The payer may recover from the remainderman the share of the bill for the part of the year after the death. If another life tenant comes into possession at that death instead, the recovery is from that subsequent life tenant and not from the remainderman.
A family putting land on the market after a death meets questions about who now holds title and who has to sign the deed. Where the land came to them by inheritance, that ground is covered in how to sell land you inherited.
Thinking about selling land that is held under a life estate?
Send the address or tax map number and the deed or will that set up the life estate if you have it, and Lowell will talk through how the arrangement bears on a sale and which questions go to an attorney first. No cost, no obligation.
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Questions about this term
Does the remainderman have any say while the life tenant is still alive?
Virginia's Code gives those entitled to the remainder at least one protection during the life tenancy. If a tenant for life of land makes default or surrenders, they may be admitted to defend their right before judgment, or may assert it after judgment without prejudice from the default or surrender. What other rights a particular remainderman holds depends on the instrument, and an attorney reads it.
What happens to the remainder if the life tenant borrows against the land?
Virginia's Code addresses the case where the instrument gives the life tenant a power to dispose of the property absolutely. There, the remainder is defeated only to the extent the life tenant lawfully exercised that power, and a deed of trust or mortgage signed by the life tenant is not an absolute disposition of the estate unless the estate is sold under it. Whether a lender will lend against a life estate at all is the lender's decision.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 55.1-106: life tenant's power of disposal and the limitation in remainder Code of Virginia
- Va. Code 55.1-107: default or surrender by a tenant for life Code of Virginia
- Va. Code 55.1-122: taxes in the year a life tenant dies Code of Virginia
- Va. Code 58.1-3344: sale for delinquent taxes of land assessed to a life tenant Code of Virginia
- Va. Code 55.1-101: conveyance of estates by deed or will Code of Virginia