By Quentin Fottrell, MarketWatch
I have been married to my husband for 38 years and we have three children together. When his mother passed away, he received an inheritance of $8,000. My husband never told me about this money, and he spent all of it before I found out he even received his inheritance.
When my father passed away, he intended that any inheritance we received would be kept in his own family, so naturally my inheritance was made out to me and me alone. I deposited the money into a checking account with just my name on it.
Within 30 days of receiving my inheritance, I purchased a home with the proceeds, and my husband talked me into putting his name on the deed. The check given to the seller’s attorney was a cashier’s check with my name alone.
If I die before my husband, is it possible to put the house into a living trust given that my father’s intent was to keep the money within the family, and not my married husband’s family? I want this home to be an inheritance for our children, and I don’t want him to sell it as soon as I die.
I wish to make sure that he doesn’t sell it or rent it out in his lifetime. I would like him to live there until he dies. He has paid for a couple of renovations to the home. How would I go about making sure that my kids will have this home as an inheritance, assuming I predecease my husband?
What’s his is his — and what’s yours belongs to both of you.
What happens to your property if you predecease your husband, which is obviously not a given, depends on the kind of ownership you share. If you have “tenancy by entirety” or “joint tenancy with right of survivorship” then your husband will inherit your half of the home. If you have “tenancy in common,” then you will be able to bequest your half to someone else, in this case your kids.
If you had bought this property alone with the money you inherited from your father, it’s typically deemed separate property in a community-property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). Inheritance is usually separate property. But if you use marital funds to improve the property, it becomes community or marital property.
But it’s different in separate-property states in most cases where there are no extenuating circumstances. “In a separate property state, one spouse can hold property without having the other spouse on title, and the other spouse would not have any right to that property,” says Kimberly Hanlon, co-founder of Lucere Legal in Minneapolis.
“In the case of a divorce, the court will sometimes look at the proportionate share of contribution when determining how to split up the asset, in which case her contribution in the initial purchase would be weighed against his contribution in the improvements,” she adds. Probate court also considers whether it’s a separate asset, joint asset, and a prenuptial agreement can change it again.
In some separate-property states, the surviving spouse has statutory rights to a certain percentage of their deceased spouse’s estate and/or rights in the marital homestead, Hanlon says. “Minnesota is like that. However, the surviving spouse may consent to waive those rights, either in advance — while their spouse still lives — or after the death.”
You don’t say where you live, but your husband seemed to know what he was doing: not putting his name on the deed and using marital funds to renovate the home. The good news is the opposite is also true if he predeceases you. But let’s hope that doesn’t happen and you have many more than your 38 years left. If you do receive another inheritance, don’t let anyone talk you into anything.
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