Elder Law - Len and Rosie


What if he goes first?

Dear Len & Rosie: I have been married to my husband for 10 years, but we lived together for 13 years before marrying. My husband has children and grandchildren from a previous marriage. He has all of his financial accounts in his name only, and our home is in a trust in his name only. He refuses to add my name to the deed. The trust is revocable, but I will get to “use” the home until I die, and then his heirs inherit. Under the circumstances, is any of his property community property? Or will I be left with nothing when he’s no longer living? I wonder if I would be more secure divorced than married financially, since I worry that his children will contest any thing that my husband leaves me in a trust or will.
- Susan

Dear Susan: This is a common theme in blended families when either or both spouses have children from a prior relationship. Your husband fears that if he dies first, you’ll get everything, and it’ll wind up staying in your family instead of passing to his children and grandchildren. So, his trust was drafted to provide you with a place to live for the rest of your life, and perhaps income on some of his investments (we’d have to review his trust to be sure).

Is there any community property? Maybe. Community property is defined as assets either of you acquire during the marriage, except as a result of a gift or inheritance. Everything your husband owned ten years ago before your marriage is separate property owned by him and him alone. If he wasn’t retired by then, his earnings after the date of your marriage is community property half owned by you, and so is whatever he purchased with his employment income.

So, even if the home is in his name alone, you own a partial community property interest in it, if he’s been using community property income to pay the mortgage. This doesn’t mean the entire property is community property; only the portion actually purchased with community property is. Keep in mind that if the two of you signed a prenuptial agreement, then all bets are off. If you did, you may have agreed that his income would remain his separate property.

Assuming you don’t get fed up and divorce him because of his reluctance to provide for you in a manner sufficient for your needs after his death, you may be able to assert that you own part of his trust because it’s community property. But you have to be careful. His estate plan could include a “forced election” by which you would have to choose between your community property rights and your lifetime right to occupy his home together with whatever else he leaves you.

What you ought to do now is to try to talk to him gently about what you’re going to need to provide for yourself after his death. You’ve been together for twenty-three years, so there’s a good chance he’ll listen as long as you acknowledge his need to provide for his descendents. – Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway in Sonoma, at 996-4505 or Lentillem.com. Len also answers legal questions each weekday, 3 to 4 p.m., on Newstalk 910 AM.

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