Control Who Gets Your Home with Details in Your Estate Plan

Dear Mr. Premack: My husband and I bought a house in Texas and live in the house. He has two adult children and I have two adult children from our prior marriages. I have a Will that gives him everything and the four girls everything if I die after him. He refuses to sign a Will. What happens if he dies before me? Do I have to give his two daughters half of my home? – SF

Your question is becoming more common as people, for whatever variety of reasons, remarry after a divorce or a spousal death. Often, people remarry without considering the legal effects this very personal decision will have on the lives of their existing family members.

Under the intestacy laws that exist in Texas, if your second husband dies before you, without having a Will, then his two daughters become owners of his half interest in the house. Their rights are limited: they own half the house, but they cannot do anything with it. They are legally required to honor your right to occupy the house for so long as you live (or until you decide to move). They are legally required to pay for half the homeowner insurance, and to pay half of the principal payment if you have a mortgage. Under those conditions, they may even view getting half the house as a burden.

Why does your husband refuse to make a Will? Perhaps he worries about the inherent conflict between his two obligations: he wants to support his wife, but also wants to be sure that his daughters receive an inheritance. If he leaves the house to you alone (like you have done for him in your Will) he may worry that you will remarry if he dies first, and leave the house to your new husband. To avoid discussing that possibility, he refuses to make a Will.

He needs to know that there are alternatives. One alternative is that he could make a Will which contains a trust. In that Will, he would leave his half of the house to that trust, naming one of his daughters as Trustee. He would give you the right to occupy the house for the rest of your life, on condition that you will pay all of the ongoing expenses. When you die, his half of the house is required to pass to his daughters. You could modify your Will in the same fashion, to make sure that your two daughters are similarly protected.

Another alternative is that the two of you could put title to the house into a living trust. You agree, in the living trust, that when one of you dies the trust cannot be changed, and that the house title will remain in trust until both of you have died. The survivor has the right to occupy the house and the obligation to pays its expenses. If the survivor remarries he/she cannot leave the house to the new spouse. When both of you have died, the trust distributes the house in equal portions to all four daughters, which fulfills your desire to protect each other and to protect all of your children.

You both gain in three ways: 1) these plans simplify the legal procedures that must take place after one of you dies, 2) the written instructions avoid future conflicts over the responsibility for maintaining the house, and 3) you both know that you have met your obligations to your spouse and your obligations to your respective children. See a qualified certified elder law attorney to discuss these alternatives.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, November 26, 2010

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