Protection of Separate Property

Dear Len & Rosie,

My mother is a very healthy 79-year-old who plans on getting married this summer. Her husband to be is also in good health. He has told her that he will put his house into trust for his children when he passes away but she will be able to live there until her death. He does not want her to contribute any money into the up keep of the house. Is there anything my mother needs to do before getting married to protect her assets and make sure she will always have a home to live in? His children like her and said she can live there until she wants to leave. I'm concerned that they may change their minds after their father is gone.


Dear Karen:

A first marriage is usually all "yours, mine, and ours" in which a couple pledges their fate together for better or worse. But this is a second marriage, and no matter how well your mother gets along with her future step-children today, if her new husband dies first, your mother will be the only thing standing between them and their inheritance.

Your mother and her fiancee should consider entering into a prenuptial agreement. It isn't wrong for your mother to trust her husband's children, but it's best to play it safe. A prenup shouldn't be needed to protect your mother's separate property. Everything she brings into the marriage will remain her sole and separate property if she does not commingle her assets with those owned by her new husband. And since both of them are retired, there should be no community property to speak of.

So why a prenup? One can guarantee your mother's right to reside in her husband's home after his death. If he breaches the agreement and dies first after having failed to provide your mother with a life tenancy, house trust, or right of occupancy, she can sue his estate or trust, or even his children, to enforce her rights under a prenuptual agreement.

If they decide to enter into a prenup, they each need their own separate and independent attorneys. These days, a perfectly valid prenup can be thrown out by the court if each party did not have their own attorney to advise them as to what rights they gave up by signing it.

In addition to the prenup, both your mother and her fiancee should update their wills and trusts after the wedding. A surviving spouse is automatically cut in for a share of the dead spouse's trusts and probate estates, unless the estate plan is amended to take the new spouse into account and spell out exactly what the new husband or wife (or registered domestic partner) should or should not inherit. Alternatively, your mother and her fiancee can amend their estate plans now in "contemplation of marriage" to identify what inheritance rights they will have with respect to one another.

The point here is that both of your families will be better off if your mother and her fiancee enter into this new marriage with a plan, instead of leaving everything to chance and hoping for the best.

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 Len also answers legal questions each weekday, 3-4PM on Newstalk910AM.