Dear Len & Rosie,
I divorced my first husband fourteen years ago. I have one child from this marriage, my daughter, who is now sixteen years old. Eight years ago, I married a second time. My second husband has been the primary earner during our marriage. Most of what we own was paid for by him, not me. If I were to die before him, what claim would my daughter have against assets my husband and I have accumulated?
What do you suppose would happen if you died first, and everything you and your husband owned was titled in joint tenancy, except for your retirement accounts and insurance policies, and you named each other as beneficiaries for those? The answer is that your husband would own everything, and he wouldn’t be under any legal obligation to leave any of it to your daughter upon his death. And by the time he dies he may not like her very much. Already your daughter, his once precocious 8-year-old step-child, has transmogrified into a rebellious 16-year-old.
You have the right to dispose of your separate property and your half of the community property as you wish upon your death. You don’t have to leave it to your husband, even if he paid for it all out of his earnings. His earnings during your marriage are community property and half owned by you, unless you signed a valid prenuptial agreement that says otherwise.
So how do you do it? One way is to make sure that you and your husband do not own anything in joint tenancy. You can divide up your accounts, and sign a deed severing the joint tenancy to your home. Then you can make a will that leaves your assets to your daughter upon your death. You could also provide in a will that your half of the property be held for the benefit of your husband until his death in a trust designed to insure that your daughter will wind up inheriting your assets on the surviving spouse’s death.
But that could easily backfire. Imagine your husband’s perspective. He paid for most of what you own, and you’re taking half of it away from him? There’s another word for doing just that: Divorce. Marriages have broken up over this sort of estate planning.
There’s a better way. You and your husband can sit down and have a discussion and come up with a deal. The two of you can enter into a binding agreement to devise property - a contract to make a will. You can promise to leave everything to one another, or almost everything, and also promise that on the survivor’s death your daughter will get it all, or at least her fair share if your husband has children of his own he wants to protect.
Len & Rosie