Family Holidays have three children. My will and my living trust state that everything goes to them. My son recently told me that he and his wife of eight years are separating. They are not getting a divorce. Is she entitled to half of my son’s inheritance when I pass away? My stocks and money were accumulated before they married. I am 80 years young, and still working. Do I remove my son’s name from my will to protect his inheritance.
The simplest way to protect your son’s inheritance is to leave it in trust for him. You can create the trust in your will. (You can’t use your living trust for this; among other reasons, it expires when you do.)
Your daughter-in-law has no legal right to a share in your son’s inheritance, regardless of when your assets were accumulated, said Eric Kramer, a Uniondale estate lawyer.
If you leave things as they now stand, at your death your son can put his inheritance into one or more accounts in his sole name. He should never commingle it with any money that he and his wife have shared. That way, it remains his separate property. If they subsequently divorce, all she could claim is part of any increase in the value of the inheritance after he received it.
And if your son and daughter-in-law filed for divorce before your death, she’d have no claim on his eventual inheritance,
Kramer said. The assets that are divided in a divorce
are the marital assets at
the time the divorce proceeding began; assets inherited after that date aren’t included.
But the easiest way to avoid any such “What if?” scenarios is to leave one-third of your estate in
trust for your son for his lifetime. He can be his
own trustee, but he must have a co-trust who is an unrelated third party.
“The co-trustee can be a friend of your son’s, but not one of his siblings,” Kramer said.
Your son can draw on the trust, or terminate it, as he wishes. Trust assets are protected from his creditors. Trust disbursements (or termination) will require the signatures of both trustees; but since the co-trustee is going to be a friend, that won’t limit your son’s access to his money. And what if your son and his friend have a falling-out? Not a problem: “The trust document can say that your son has the right at any time to remove the co-trustee and put someone else in his place,” Kramer said.
I am ready to prepare my will. I am older than my wife and in so-so health. We have been married for many years and we have no children together. She has grown children from a previous marriage who have not lived with us. Our major asset is our home. I assume I will die before her. I was planning to leave everything to her. But when she dies, I would like some members of my family to get some of what is left rather than all of it going to her children. Is there a way I can arrange that.
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