Death Clause

Last Updated: November 16, 2023 by Savannah Minnery

A death clause is a provision in a residential lease agreement outlining the necessary procedures following the death of a tenant during the lease, including what happens to the lease contract, tenant’s belongings, and security deposit.

Sample Death Clause

Below is an example of a death clause that could be incorporated into a residential lease agreement:

Upon the death of a tenant during the lease term, the Tenant’s estate will be required to pay any remaining rent balance or any additional sums due to the Landlord. These sums may include any expenses that the Landlord may incur as a result of the Tenant’s passing. The Tenant’s estate is not liable for any damages and is not required to pay any penalty to the Landlord for breach of contract or early termination of this Lease Agreement. In the event of a sole tenancy in which the tenant passes away, the Landlord is to, if there are no other occupants living in the dwelling, issue a ___ day notice to vacate the property to the appropriate person (e.g., next-of-kin, executor of estate or solicitor). The tenant’s family or representative shall notify the landlord within three days following the tenant’s passing.

Why Include a Death Clause in a Residential Lease Agreement?

A death clause provides clear legal protection and clarity during an emotionally sensitive period. Below are some key factors that highlight the importance of including a death clause in a lease agreement:

  • Clarity surrounding legal action – A well-written death clause will clarify the next steps regarding required legal action for both parties.
  • Understanding of financial responsibilities – Outlining the financial responsibilities ahead of time (e.g., rent and security deposit) will eliminate confusion and frustration for the tenant’s family.
  • Protection for both parties – A death clause can be customized to fit the needs of both parties and provide the appropriate legal protections and accommodations.
  • Easier transition – Clearly outlining legal actions, financial responsibilities, and logistics makes for a smoother transition on both sides.

What Are the Landlord’s Responsibilities Following a Tenant’s Passing?

The steps following a tenant’s death are similar to a tenant breaking a lease early. The primary difference is that communication would go through the tenant’s executor instead of the tenant. The landlord must receive written documentation of the tenant’s death before proceeding with legal action.

Once the landlord has received notice, they can proceed with resolving financial issues, lease responsibilities, and move-out arrangements. If the landlord becomes aware of the death before receiving notice, they should notify local authorities—who will then handle contacting the tenant’s family or next of kin.

Can the Deceased Tenant’s Estate Break the Lease Early?

If the deceased tenant was the sole occupant of the unit and was over 18, this would qualify as a legitimate reason for breaking the lease early. In order for the representative to proceed with the lease termination, they must take the following actions:

  • Notify the landlord within a reasonable time period (e.g., 14 days)
  • Provide the landlord with the tenant’s will and death certificate
  • Remove the tenant’s belongings from the property
  • Sign an inventory of the removed belongings

Is a Death Clause Required to Break a Lease Early?

A death clause is typically not required to break a lease early. However, each state has their own laws following a tenant’s passing. For example, Pennsylvania landlords may collect rent for up to two months following a tenant’s death, while Colorado leases automatically terminate after a tenant passes. In New York, the tenant’s estate is responsible for the remainder of the lease term (unless both parties agree to terminate).

What to Include in a Death Clause

Landlords should consider the following when drafting their death clause:

  • Financial Obligations – The clause should address the financial responsibilities of both parties following the tenant’s passing—such as unpaid rent, early termination fees, and the reimbursement of the tenant’s security deposit.
  • Tenant’s Belongings – The landlord should address the timeline for removing the tenant’s belongings from the premises so the landlord can begin preparing the space for new tenants.
  • Lease Responsibilities – A statement should be included regarding who will be responsible for the remainder of the lease agreement—such as a lease transfer or a sublease agreement.
  • Lease Termination – Landlords may want to provide a grace period for the family or executor to make financial arrangements, or even the option to terminate the lease immediately following the tenant’s passing.
  • Proper Notice – The tenant’s family or executor should notify the landlord within three days following the tenant’s passing.

Every lease is unique, and landlords have the flexibility to customize it to fit the needs of both parties. This may include adjusting timelines surrounding the move-out, inspections, and remaining rent payments.

Ensuring the Death Clause is Valid

A death clause cannot contradict state or local law—which is why landlords should research rules and regulations in their area beforehand. It is important to prioritize clear communication and compassion during these difficult circumstances.