In most states, estranged spouses are entitled to a portion of their spouse’s estate. Protecting your assets, as in this reader’s case, can be complicated but an estate attorney can help.
Q: I was married in 2010. My husband left me in 2014. In 2015, I purchased a house. I have four daughters, none with my estranged husband. I will be having surgery soon and I’m worried that if I pass away my house and vehicles will go to him. If I write a basic will leaving everything to my oldest daughter, will that hold up in an Iowa court? I want my daughter to inherit all my possessions.
A: You should have an attorney help you out with your will. In most states, husbands (even estranged husbands) are entitled to a portion of their spouse’s estate. In your situation, while you may not like it, you are still married. If you die and your estranged husband finds out, he could claim a portion of what you own. While having a last will and testament will help, you may want to transfer title to a living trust or consult with an estate attorney on how to protect your assets before you have surgery.
You’ve indicated that you want to leave everything to your eldest daughter and to us it would be unusual for a parent in the U.S. to leave everything to the eldest daughter or son. We’d prefer that you know what you are getting into and have the right reasons to leave everything to one of your children.
You may be trying to have your daughter take care of everything if something should happen to you, but if you are looking to have your assets actually wind up in your kids’ names, you might instead think of naming your eldest daughter executor of your will and then name each of your kids as equal owners of what you own, like your house, car and bank accounts. This way, your oldest daughter can take care of things but doesn’t get everything.
Many people think about their last will and testament when they go for surgery, but there are a couple of other documents you should consider having the attorney draft.
As a homeowner and owner of a car and other assets, you might need your daughter to handle your financial matters and possibly make tough healthcare choices should your stay in the hospital become extended. To do that, your eldest daughter (assuming she is at least 18 years old) may need to have your power of attorney for financial matters and a separate power of attorney for healthcare.
Since your question was mainly about your biggest asset – your home – you should talk to an estate attorney further to assess what documentation might be best for you. The estate attorney can evaluate what you own and what value your assets have and then help guide you on what to do. The estate attorney might decide that your home should be in a living trust or may say a simple will should suffice.
The living trust would hold title to your home and you would be the beneficiary of the trust and also the trustee. But, if you become incapacitated, you can direct your oldest daughter to take make decisions for you, which would be a fast and easy process. And, if you were to die, your eldest daughter could be the successor trustee with the beneficiaries of the trust being those of your kids that you want to have own your home.
As you talk to your estate attorney, you can talk about your home and other assets. And, remember, that 401(k) and IRA accounts frequently have automatic provisions for those assets to go to the spouse, so be sure to check how those assets are titled before your surgery. You should also make sure that any life insurance policies name your four children or the trust as the beneficiary, and not your estranged spouse.
We hope your surgery goes well and you recover swiftly.