QUESTION
Can I legally will a home obtained in a previous marriage to my children and not my current spouse?
Asked on Jul 21st, 2013 on Estate Planning - Missouri
More details to this question:
I understand it's considered separate property. The house is paid off from child support payments so I consider this house my children's home upon my death. My current husband intentionally paid for some of the improvements made in the house (now rental property) over the years but never a mortgage payment. That came out of my income prior to paying it off. I want to will it to my children but I suspect my husband might think it belongs to him upon my death or divorce.
14 ANSWERS
Trusts & Estates Attorney serving Camarillo, CA
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Law Offices of Larry Webb
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You can "will' whatever is your separate property. Separate property of married persons is a fact intensive analysis. A quick answer could be wrong.
Answered on Jul 31st, 2013 at 9:08 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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If home is in your name you can Will it to whomever you want.
Answered on Jul 27th, 2013 at 3:28 PM
In most states you can will real property to whomever you wish. However, in "Community Property" states, you husband may have a claim on the property because he has helped with some of the costs.
Answered on Jul 27th, 2013 at 3:28 PM
2 Awards
If you paid some mortgage payments from earnings during your marriage and improvements from community funds and/or earnings during the marriage and/or his separate property, and if you pay property taxes and insurance from earnings, your husband will have some interest in the house. How much is difficult to say as it depends upon how long it has gone on, how much money is involved, and if it continues. I would do an estate plan that states you want the house to go to your children and any interest your husband may have should be bought out by your children with money that you leave them or their own funds upon your death. Divorce is an entirely different situation and you would have to wage that battle at that time.
Answered on Jul 27th, 2013 at 3:27 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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The home is your separate property, but your husband may have a claim for any funds he used to improve the property. It is an accounting matter, not an ownership matter.
Answered on Jul 27th, 2013 at 3:27 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The property MAY belong to your husband upon your death. It depends on the title to the property. Your questions cannot be answered without knowing how the deed reads. If it is in both names as husband and wife, then the property will pass to the survivor, upon the death of the first spouse. When the second spouse dies, he or she can leave the property according to the terms of his or her Will, trust or other estate planning. You are free to provide what you wish under YOUR Will, with the understanding that your Will might not do anything, if you predecease your husband. He has the same issue you do.
Answered on Jul 27th, 2013 at 3:27 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Yes you can will the property to your children; you are advised to seek the assistance of an estate planning attorney so you don't make any mistakes in the distribution and as to how the distribution of the asset is made.
Answered on Jul 27th, 2013 at 3:27 PM
Thomas Edward Gates
Because he used communal money for the improvements, he could make a claim of community property. However, it is when the funds become commingled and can no longer be designable that the court usually identifies it as communal property. What funds were/are the payments coming from for the property tax and insurance? How is the rental income handled? You can will the home to your children and, your husband can contest it in court if he wishes to.
Answered on Jul 27th, 2013 at 3:27 PM
You paid what is irrelevant to your ability to bequeath the property. Remember that your husband has rights to a percentage of your estate unless he gives that right up in a valid marital agreement. For specific information, consult with an attorney specializing in estate planning.
Answered on Jul 27th, 2013 at 3:27 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If it is just in your name (check the county clerk's deed records) then you can leave it to whom you wish. You might want to compensate your husband for his investment in the property, but most married couples have their finances so intermingled that it is difficult to compute such a separate payment. Your husband will be entitled to a statutory share of your estate if what you leave to him is less than the statutory share (one-third for long-term marriages).
Answered on Jul 27th, 2013 at 3:27 PM
3 Awards
Yes, but he may possibly be entitled to reimbursement of monies he put into the property. Discuss that with an estate attorney. You may need to address that with an estate attorney. It may need to be an attorney that does not represent both of you as there is a conflict.
Answered on Jul 27th, 2013 at 3:27 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I need additional details but I suspect that he will have some rights in a divorce, but perhaps less at your death is you will it to another. If you are in Michigan call to engage us and with further details.
Answered on Jul 27th, 2013 at 3:27 PM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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You can indeed will the home to your children, but that would not defeat any community property interest in the home that your husband might have, due to his investment in the property. You need to meet with an estate planning lawyer here to sort this out. It may be that you and your husband can resolve this between you and sign a post-nuptial agreement to prevent any dispute later on.
Answered on Jul 27th, 2013 at 3:27 PM
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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If you did not do anything to put your spouse's name on the title, it is your separate property.
Answered on Jul 27th, 2013 at 2:54 PM