It is sometimes believed that living
with and acting as another person's caregiver will
provide the caregiver with the right to remain in the
house or to claim a share of the estate following the
patient's death. Children often believe that
caring for an elderly parent entitles them to greater
share of the parent's estate, particularly when that
child's siblings provide little or no assistance with
the parent's care.
(Rather than repeatedly use phrases
like "the person receiving personal care services" or
"the child's elderly parent", this person will be
referred to as the "patient". This is merely for
convenience and not to indicate any formal relationship
exists with the caregiver.)
By itself, the act of providing
someone with personal care does not provide the
caregiver with any rights to a portion of the patient's
estate, even if the caregiver has a family relation with
Many patients may actually intend to
have the caregiver own the house or receive a portion of
the estate, but, like so many people, just never get
around to creating legally effective documentation like
a valid will or deed.
A caretaker may still have the
ability to make a claim against the estate when there
aren't any valid documents.
It is possible for a patient and a
caregiver enter a valid agreement that entitles the
caregiver to a portion of patient's estate in return for
A valid agreement may even exist
where the patient and caregiver do not have a written,
signed contract between them. Verbal agreements
that are properly formed and acted upon are legally
enforceable. However, as with all legal issues,
the strength of any claim will depend upon the
individual facts of each case, particularly the language
that was used by the parties.
Statements such as "You won't have to
worry when I'm gone" or "You'll be taken care of when
I'm not around" are very vague. Where this type of
uncertain language is used, it is difficult for the
caregiver to enforce the apparent agreement against the
patient's estate. Suppose that it is proven
without any doubt that the patient made these
statements, without more it will still be difficult for
the caregiver to collect.
One reason is that the caregiver's
opinion of how much money is needed to satisfy these
requirements can differ greatly from the patient's
opinion, but only the caregiver is available to express
his or her opinion. It may also be found that the
patient was making similar remarks to others, even those
who did not provide personal care, which makes the
patient's intention to enter an agreement by those words
seem less likely.
Even with more clear statements such
as "You can have my house when I'm gone", there may
still be some difficulty in enforcing the apparent
agreement. One of the most important factors in
these circumstances may be the patient's legal ability
to enter such an agreement.
For example, it
must be determined whether the property was titled in a
manner that entitles another person to its ownership.
If a patient holds title to the house as joint tenants
with the right of survivorship with any other person,
the surviving joint tenant takes title upon the
patient's death by operation of law. Even though
the caregiver may have entered the agreement without
knowing of the other owner, the surviving joint tenant's
ownership cannot be impaired by the caregiver's claim.
A house may also be subject to a
mortgage, which must be satisfied prior to a transfer of
the house into a new owner. If the agreement was
for a specific item of personal property, such as a car,
these items may also be collateral for a secured debt
that must be paid prior to transfer.
Even where the agreement was for a
defined sum of money, the caretaker's claim becomes a
general debt of the estate which will be paid along with
all other general debts. If the estate does not
have sufficient assets to fully satisfy all general
debts that are within the same class, each debt
typically receives a proportionate reduction of its
Although the terms will be more
certain and may be less subject to challenge, payment
according to the terms of a valid, written contract will
also be subject to all of these previously described
A will that names the caretaker as a
beneficiary is more certain than a valid verbal
agreement, but is still not a guarantee that the
caretaker's expectations will be met.
Just as with a valid claim against
the estate based upon an agreement, the estate's debts
must be paid before the caretaker will receive any gifts
made by the will.
However, being classified as a
specific testamentary gift generally means that the gift
will only be paid after every one of the estate's
unsecured debts are fully satisfied.
Unlike a general debt, a testamentary
gift does not receive a reduced payment when there isn't
enough to pay all of the estate's other obligations.
If there are insufficient assets to pay all of the
estate's debts, the beneficiaries of the testamentary
gifts simply do not receive any payment.
It is also important to note that
wills are not effective until the moment of death.
Although a properly drafted will is legally valid at the
time it is properly signed, it is not a legally
enforceable document until death. This aspect of
wills allows them to be changed at any time and any
number of times prior to the moment of the creator's
Although a patient may produce a
valid will that honors the agreed obligation to the
caregiver, the patient is free to change, replace, or
destroy that will at any time prior to death and without
informing the caregiver. Of course, the patient
may have still have a claim against the estate in these
Finally, even a testamentary gift
made to a caregiver under a valid will from an estate
that has sufficient assets can be superseded by the
legal rights of one of the patient's relations.
Surviving spouses, in particular, are frequently
provided with the right to claim a specific sum or
portion of the estate.
Pennsylvania allows a surviving spouse to claim an
"elective share" equal to one-third of the deceased
spouse's estate. Pennsylvania also provides
certain family members the right to claim a "family
exemption" of $3,500 in specific circumstances. If
someone makes a claim based upon this type of legal
right, the amount of the caregiver's claim or gift will
be subject to the estate's obligation to satisfy that