How do I leave everything to my kids?

Question

I am married and do not want to include my spouse in my will. I want to leave everything to my adult children from previous marriage. I do not have many assets and I do not own any property with my spouse. I only have a few personal effects and some land I anticipate to inherit from my mother when she passes.

James Frederick · Answer

This is something you really need to meet with an estate planning attorney about. The BEST way to do what you are trying to do is through a Trust. Whether or not it can be done completely depends on the circumstances. You CANNOT do what you are trying to do through a Will. It will not work.

Phillip Day · Answer

Well here is a couple of ideas starting with the inane.  One you could get divorced thereby eliminating any challenge from the surviving spouse.   Of course, that could strain your finances among other things.  Second, you could ask for a postnuptial agreement from your current wife where each of you waive your rights to an elective share and any homestead rights.  Of course this could lead back to option one, thereby making option two null and void.  Third, you could give everything you have away during your life but again, this could trigger option one again and a whole bunch of other legal and tax issues that may not be worth the hassle.  All joking aside, the fundamental issue is whether you can disinherit a surviving spouse and in Florida, there is a right to the elective spousal share which prevents the disinheriting of one's spouse.  Additionally, you have to cope with the homestead rules which also prevent one from leaving a spouse and kids homeless.  It is common in second marriages to do a trust and splitting the assets proportionately among each other's kids, however, most spouses don't leave the other penniless.  If this is truly what you want, consider negotiating a post-nuptial agreement with your wife assuming there are valid reasons for doing so.  If there isn't, one could argue the contract is void for lack of consideration...so be careful.  One final note and most likely the right solution, is that if the bulk of your assets are coming from a future inheritance, consider asking your mother to pass those in trust directly to your children or to you in a protected trust vehicle.  This could prevent any marital issues and accomplish what your ultimate goal is.  I would highly recommend that you contact an estate planning attorney to get the right guidance based on the facts.

Shadi Ala'i AlaiShaffer · Answer

It is best you meet in person with a trust attorney to assist you in meeting this goal, it is possible for you to do this but you should meet with an attorney to assist you better based on your circumstance.

Darin Christensen · Answer

Your spouse has a right under to receive a portion of your joint assets regardless of what your will says.  You should meet with an estate planner to structure a will that gives your spouse as little as possible.  If you can get a spousal agreement from your spouse that you don't have to give your spouse anything, your spouse is not entitled to get anything.  You also should talk to your mother about revising her will to leave any inheritance for you in trust for your benefit during life and then to your children.  Your spouse would not be entitled to any share of that.

Edward Armstrong · Answer

You may leave whatever you wish to your children. Your spouse, however, has the right to elected to take a share in your estate without regard to your will.  If you have no assets or don't have many this won't mean much, but the spouse does have the right of election to take against your estate - you cannot disinherit a spouse.

Frances Headley · Answer

If you have no community property then you can make a will and not leave anything to your spouse.  However, if there is community property you can only will your one half of it.  But you must do a will as the statutes provide for the spouse to be an heir when there is no will.

Dara J. Goldsmith · Answer

If your assets to be probated are $100,000 or less even if you have a Will not distributing to your spouse, but to your children, he will be entitled to your probate estate.  You should consider a trust that gives your community property to your children.  Your trust will need to be funded during your lifetime or you risk the estate being set aside to your husband.  If your estate ids over $100,000 then a Will can work.

Thomas Edward Gates · Answer

If you live in a community property state you may have no choice in including your current wife in the distribution of your estate.  Best approach is drafting a will so that all your personal property and your one-half of your community property estate can be distributed to your children.

Brian Haggerty · Answer

The personal things you should give to your kids during your lifetime. You can create a will that leaves all to your kids, but your spouse will have the right to "elect against the will" when you pass away, claiming her elective share of your estate, which is based on the length of time you have been married. If you disclaim the inheritance from your mother it will pass as though you had died before her  which may work, but you cannot change the way the property passes if you disclaim. You could ask your mother to leave the property to your kids.

Victor Waid · Answer

Assuming you have little or no assets, and did not acquire any community property during the current marriage, your children of a prior marriage would be entitle to receive everything unless you have jointly owned assets of any kind held with your present wife, in which case she would survive to those assets. You could draw up a will or have one prepared to accomplish your objective.

Susan Wideman · Answer

You may want to avoid using a will to divide up your estate since that goes through Probate and your spouse could assert an interest in the assets even though you left him out of the will.  Rather you should consider a revocable living Trust or naming your children as beneficiaries on all of your assets.  I would recommend you work with an attorney on this if it important to you.

Douglas Tull · Answer

Probably a Trust would be the best vehicle to achieve what you want  without a Trust  into which you transfer all of your assets, what remains in your name when you die, will be subject to your wife's claims as she has certain priorities. Even if you have a Will that gives everything to your children, your spouse can file a claim in probate to elect to take against the will,  in which case she would receive of what she would normally have received if you did not have a Will.

Christine James · Answer

You can leave all of your separate property and 1/2 of any community property you have now or accumulate during the marriage to whomever you chose, including your children. Simply have a will prepared stating your wishes. It will be helpful to avoid any problems down the road if the will is drafted to include specific reference to the fact that you do not want to leave anything to your spouse and the reason why.

Monica H. Donaldson Stewart · Answer

You are generally entitled to dispose of your separate assets (e.g. premarital or inherited) however you choose; however, in order to do so, it is advisable to create an estate plan that makes your wishes clear. I recommend you consult with an attorney to discuss your wishes in greater detail.

Mark T. Peters · Answer

Then leave a will giving them everything. I like to put in a line that says I know I am married, but I choose to leave her nothing. Even then, she may be entitled to the first $50,000 of your separate property.

William Wilson · Answer

Hire an attorney and draft a will with those provisions in it.

Marcus Kroll · Answer

Under NY law you are unable to disinherit a spouse. They are entitled to a statutory share.  There are techniques to accomplish your goals but they require some extra planning steps and the consent of your spouse.

David McAndrew · Answer

Write a will. See an attorney. However, even if you leave all your assets in your name, and plan distribution through your will, your wife has certain elections, (money due her) that takes priority over the other transfers. So, even if you left all to your children, your wife could elect to invade those assets first, up to a certain statutory amount. Better choice, put your children?s names on the assets, as designated beneficiaries, and then there will not be a probate estate to argue about.

Richard Keyes · Answer

In Missouri, you cannot disinherit a spouse. If you leave everything in your will to your children by a previous marriage, your current wife can take against the will and get part of your estate. If you current wife wants her assets to go to her children and not to you, then I suggest that you see an attorney about a post-nuptial agreement that might resolve this problem. Please note that in Missouri, if you and your wife do enter into a post-nuptial agreement, you and your wife have to be presented by separate attorneys. If she is not represented by an attorney, the post-nuptial agreement is subject to being set aside after your death.

Jayne Sebby · Answer

Have an attorney draft a will that directs all assets of your estate be passed on to your children and specifically excludes your current spouse. Some states require that a surviving spouse receive a portion of the decedent's estate. Your attorney will be able to tell you what your state laws are.

John Brennan · Answer

You need to see an attorney if you wish to make this happen. Without a trust your plan will fail.

Don Rosenberg · Answer

You can't. A person cannot disinherit a spouse through a will. The surviving spouse has rights to elect against. You need to do a living trust. See website for more info.

Sandra Alexander · Answer

You will have to create a Trust to accomplish this. If you have not type of estate plan, then your wife and children will share the value of your estate pursuant to Michigan statute. If you only have a Will, your wife will have the option to elect against your Will to claim her statutory rights if you leave her with nothing in your Will. Therefore, the only option is to create a Trust that will hold and manage all of your assets will not be valid.

Roman Aminov · Answer

You should speak to an attorney since that me difficult to accomplish without professional advice. NY obligates you to leave at least one third to a spouse.

Jeffrey Lisnow · Answer

You may want to have a consultation with an attorney to review your options. It is well worth the money if it will save you and your family aggravations down the line. Many attorneys, such as myself, will even do these over the telephone.

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