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 this children.
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 step-daughter driving a Lexus paid for with your money while your son gets nothing.
There are several ways to accomplishing 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. You will 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
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, 3-4PM on Newstalk910AM.