Q: I have a problem with my mother’s home in Virginia. She and her sister inherited the property from my grandparents, her mother. My mom’s only sister is deceased and had no children. My mom plans to will the home to me.
My mother also has a son who is dysfunctional due to alcohol abuse and has resided with me since the 80’s. My brother has an adult son who is estranged. My husband left me approximately three years ago. Approximately 4 months after leaving me, he approached me to have his name removed from the house we had purchased together in Maryland years ago. We changed the names on the home and I took out financing on the home a couple of years ago.
What steps can my mother and I take to ensure that neither my soon-to-be ex-husband nor his heirs will ever have any claim to my mother’s property? I have already executed a will, excluding him from receiving anything, but I am concerned about whether it will suffice.
I thought about executing a post-nuptial agreement that would be legally binding/enforceable upon him and his heirs. He has children from a previous marriage. We haven’t completed our divorce yet because I am on his health insurance and wish to remain so until I will be eligible for Medicare later this year. So I guess technically we’re still married.
A: While it may be the case, that your husband would have no interest in your mom’s home and may never be able to get an interest in the home, you might want to consider putting the home into a trust that names you and those you designate as beneficiaries. This will ensure that the property goes to whoever you choose.
Your mom could set up the trust and transfer the title to the home into the trust. Your mom could still control the home and could even sell the home if she wished, but upon her death, the trust would continue to own the home.
Upon her death, the trust could designate you as the beneficiary of the trust and the trust could continue to own the home or you could transfer the title of the home from that trust into a new trust that you control. Then upon your death, the home could go to the people you designate in your trust.
There are various ways to set up the trust and you might be able to find an estate planning attorney that could help you put the documents together and figure out what would be best for you and your mom.
Trust documents are not for everyone and can be costly in certain parts of the country. If you find that the trust route is not right for you, for one reason or another, you’ll need to come up with another solution to make sure that when your mom dies, there is no way your husband could lay a claim on this inheritance.
Rest assured, if your husband can’t lay claim to the home, his children likely can’t as well.
But you need to be careful, if you inherit the home and then you sell it, make make sure that the proceeds of the sale would not become part of the marital estate. If you got divorced, you would not want your husband claiming any part of that money.
Finally, if nothing happens and you obtain Medicare coverage and no longer need to be on your husband’s health insurance policy, you can decide whether it’s best for the two of you to legally part ways. If the two of you are no longer married, it would be more difficult for him or any of his relatives to make a claim against your property or any property you might inherit.
Please consult with an estate attorney for more details. If you don’t know an estate attorney, contact your local bar association, and ask for the head of the Estate Committee. That person should be able to either help you or refer you to the appropriate resources.