QUESTION
Is my new husband entitled to the house that I received from a divorce?
Asked on Oct 28th, 2013 on Estate Planning - Michigan
More details to this question:
I have been divorced for 8 yrs. I received my home in the divorce. I have recently remarried. Is my new husband entitled to any part of my home if I should die? My daughter tells me he is.
19 ANSWERS
You should not leave this to chance. The best thing to do is to put the home into a trust of which you are the trustee and beneficiary during your life, and designate successor trustee(s) and beneficiary(ies) after you die. You could also designate the house as your sole and separate property on the deed.
Answered on Nov 19th, 2013 at 6:21 PM
The home started out as your separate property that you could will to anyone you want. If you use community funds to pay the taxes, maintain the property, etc., then you have commingled the separate and community property and he may be entitled to return of his part of the community funds put into the house, or the increase in the value of the house, etc. Court decisions vary on what is decided.? You need to speak to an attorney who handles Will and Trusts, especially if you do not want your new husband to get anything.
Answered on Nov 05th, 2013 at 4:38 PM
David Thomson Egli
The house you received from your divorce is your separate property. You can give your separate property to anyone at your death. You don't have to give any of it to your spouse. However, if you do not give it to some else, whether by will or a will substitute such as a revocable living trust, the intestate laws of California will require that the property be divided 1/2 to your husband and 1/2 to your daughter if she's your only child or 1/3 to your husband and 2/3 between your children if you have more than one child. You can also give your 1/2 interest in your community property to any beneficiary you want. In this case, though, if you fail to make provision for your interest in the community property, it will all go to your husband. If you used community property to maintain the house or pay the mortgage on it, might give rise to a right of reimbursement claim against your estate, but wouldn't change the bequest of the house.
Answered on Oct 31st, 2013 at 7:58 AM
The short answer is that depends. In order to keep him from having any interest in the house, you would have had to keep the house as your separate property, and not community property. In CA, everything is assumed to be community property unless you can show otherwise. Some of the ways that you can prove separate property are title, payments, and control. I highly suggest contacting an Estate Planning attorney to discuss the exact details of your case, since every minute detail can make a difference. Additionally, how you treat this property from this point forward can also make a difference. However, any doubt as to who will be beneficiary can be eliminated if you were to execute a new precisely drafted estate plan.
Answered on Oct 31st, 2013 at 7:43 AM
Edwin K. Niles
If you die without a will or trust, your estate will go according to the law of your State. You should certainly see an estate planning lawyer.
Answered on Oct 31st, 2013 at 7:29 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Your daughter is wrong. If you have a will leaving it to your daughter (or anyone other than your husband) then he only gets his community property interest. If you are using community income to make payments on the house or to pay for improvements, then he will get some limited amount of community interest in it unless you have a valid agreement to the contrary.
Answered on Oct 31st, 2013 at 7:13 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Oregon is NOT a community property state. Oregon does have a "spousal share" statute, so that you cannot completely disinherit your spouse however, that's not at all the same as having rights to property while you are alive. If you want your new husband to have a share of the house, you would have to transfer a share by deed. Do not do that except as a part of a general review of your estate plan. Since you've remarried, you should have that review of your estate plan.
Answered on Oct 31st, 2013 at 7:00 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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It depends on a number of things. How is the property titled? If it is in your name alone, then your husband would only inherit through your estate. Do you have a Will? It is possible for your husband to receive a share of your home through probate, even if your Will says otherwise. (That is because it is not possible to disinherit a spouse by Will, in Michigan). If there is no Will, your husband would be entitled to an "intestate share" of your estate. That would total the first $200k or so and half of the rest. So it is possible that that could include the home or some portion of it. If you did not want this to happen, there are a number of options available to you. Depending on your objectives, it might be relatively easy to remove any and all right for your husband to receive any portion of your estate. The catch is that you need to take care of your estate planning to make sure this happens. Your husband should be doing the same thing.
Answered on Oct 31st, 2013 at 6:58 AM
Your daughter is probably correct. I infer from your statements that you are the sole owner of the house on the Deed. When you die, it would be part of your estate. If you do not have a Will, your husband would receive half of your assets. If you have a Will and do not leave him the minimum required amount, he receives this amount instead.
Answered on Oct 31st, 2013 at 5:52 AM
He would not be unless you have placed him on title or used community funds to improve the property.
Answered on Oct 31st, 2013 at 5:50 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Yes as top a share of the increase in value from date of marriage. I strongly suggest you obtain the services of an estate planning attorney to prepare a trust and supporting documents, wherein you can specifically exclude him if you desire.
Answered on Oct 31st, 2013 at 5:50 AM
He may be. You should visit with an attorney who specializes in estate planning to plan your property and your Will the way that you want.
Answered on Oct 31st, 2013 at 5:48 AM
Thomas Edward Gates
Property brought into a marriage is personal property and cannot be claimed by the other party. However, if you live in a community property state and, use communal funds to pay the mortgage, there may be a claim of some ownership. A counter argument to this is that he would have had to pay rent and such communal payment should not change ownership of the home.
Answered on Oct 31st, 2013 at 5:43 AM
3 Awards
In Nevada, if you die without a Will and the property is subject to probate then he is. Also if your Will is from before you were married to him he is still entitled to a portion. You should speak to an estate planning attorney about what you want to have happen and plan accordingly.
Answered on Oct 31st, 2013 at 5:34 AM
2 Awards
If your new husband contributes any community property to the house he is entitled to a portion of it and that portion grows the longer you are married and the more he contributes, so yes, your daughter is correct.
Answered on Oct 31st, 2013 at 5:28 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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He is not. It is your separate property.
Answered on Oct 30th, 2013 at 5:47 AM
If you live in a community property state and your new husband contributes to the mortgage or maintenance of the property, he may have a statutory claim to the property when you pass away. If you die without a will, he may also have a claim to some of your estate, including the house, under the intestacy laws of your state. However, if you don't include him on the deed to the property during your life and you have a will when you die, the house will go to whomever you leave it to.
Answered on Oct 30th, 2013 at 5:46 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Very possibly. Your home could become community property after a while and he would be entitled to one-half the value. In order to prevent that, you should have had a pre-nup. Since it is now too late for that, you and your spouse could enter into a post-nuptial agreement where he agrees that the house is your sole and separate property and he has no rights in it. I suggest you consult with a local attorney about all of the issues arising from the marriage.
Answered on Oct 30th, 2013 at 5:26 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Yes, he would have potential rights under the laws of Michigan, and most other states. In your situation you should see a business/estate/probate attorney in your jurisdiction. No remarried person with prior children should be without counsel in these matters.
Answered on Oct 30th, 2013 at 5:25 AM