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Elderlaw Advocates

Elderlaw Advocates

Dear Len & Rosie, Can I leave my property to my adult son and leave out my husband? Could my husband change this after my death? I am afraid that if I leave it to my husband, he will disinherit my son and give everything to his children.

–Becky

Dear Becky,

You are dealing with a problem common in “blended” families — second marriages with one or both spouses having children from prior relationships. On one hand, you and your husband are likely to want to provide for one another, especially if you have been married for a very long time. On the other hand, you don’t want to look down from heaven to see your stepdaughter driving a Lexus bought with your money while your son gets nothing.

There are several ways to accomplish your goal of protecting your son’s inheritance. You can create your own estate plan, either a will or a trust, that leaves all of your assets, or a portion of them, directly to your son upon your death, whether or not your husband is still alive. You can even leave your son your half of the community property. If you decide to do this, it is important that you understand that everything you own in joint tenancy or in community property with right of survivorship with your husband will go to him if you die first. If you have any jointly held property, you need to transfer your half to your trust, or you need to sever the joint tenancies so your half will pass through probate to your son under the terms of your will.

If you want to provide for your husband too, your estate plan can hold your assets in trust for the benefit of your husband for his lifetime, passing them on to your son only upon your husband’s death. Your son can be the trustee of this trust, which will put him in a good position to protect his inheritance after your death.

Another alternative is for you and your husband to enter into a binding agreement about how all of your assets, and his, will be divided upon your deaths. You can make a “contract to devise property” under which you promise to leave everything to one another, and also promise to leave half to his children and half to your son upon the death of the survivor between you. Keep in mind that if you create your own trust and put your assets into it, chances are your husband is going to find out. Do not try to keep this a secret. We have seen couples divorce because one spouse transferred her half of the property into a trust of her own. For this reason, you may be better off if you discuss your concerns with your husband and agree to create an estate plan that works for your entire family.

–Len & Rosie

Dear Len & Rosie,

I am a single mom, engaged to be married. I also own a house that I am making payments on. My oldest daughter, who is twenty-five years old, is on the title of the home with me as joint tenants. I do not want to do a prenup, but I want to make sure my children inherit my home if something should happen to me. Is there anything I need to do? Would a trust protect them?

–Sherry Dear Sherry,

Even though you do not want to enter into a prenuptial agreement with your fiancé, it’s probably best that you do so anyway. The reason you need a prenup is because you have not yet completed the purchase of your home. When you get married, your paycheck will be community property, half-owned by your spouse. When you use your earnings to make your monthly home loan payments, you will be spending community property to buy property titled in your name alone. Despite the fact that your spouse’s name will not be on the title to the home, he or she will have a legally valid claim against part of its equity, because everything paid for with community property is community property, regardless of how it is titled.

If you want to make sure your spouse won’t be able to claim partial ownership of your home upon your death or a divorce, you need to do one of two things. Either you need to use only separate property to pay off your home loan. Or, the two of you need to enter into a prenuptial agreement that declares your earnings to be your sole and separate property, or at least declares that your home will remain your separate property even if community property is used to pay for it.

If you create a prenuptial agreement, both you and your prospective spouse must have your own independent attorneys. This may seem wasteful, but it’s necessary. In California, there is a strong legal presumption that a prenuptial agreement is invalid unless both parties have their own lawyers advising them as to what rights they are giving up by entering into the agreement. It may be bothersome for you to create a prenup, but it is really the only way you can guarantee that your future spouse won’t try to take part of your home away from your children.

Speaking of your children, you have another problem. If your home is in joint tenancy with only your daughter, when you pass away, your daughter is going to own your home (except for whatever claim your husband may make). Your other children won’t inherit any of it, regardless of what your will or trust says. If you want to make sure that all of your children inherit your home equally, the home should be in joint tenancy with all of them, or you should get your daughter to sign the home back over to you. Then, you can create a trust to divide the home up the way you want after your death.

–Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the internet at lentillem.com.

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