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Husband's Children Get My House?

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Latest post Mon, Sep 6 2010 5:45 PM by Drew. 10 replies.
  • Fri, Mar 9 2007 1:16 PM

    Sad [:(] Husband's Children Get My House?

    I live in Minnesota, a community property state. My first marriage ended in divorce and three beautiful children. I scrimped and saved and bought a small house that I want to go to my children upon my death. That's what is stated in my will.

    I have remarried. He is a wonderful man who has children from his first marriage. During our 25 married years together, we have always agreed that his children are not entitled to any ownership of my house. My husband does not appear in any documents relating to the house, but we expect him to live in it after my death until he either dies or moves to a different place.

    Now we're being told by a friend of ours, a real estate professional, that absolutely nothing can be done to prevent my husband from leaving the house to HIS children upon his death, leaving my children without any claim to it.

    Is this true?
  • Fri, Mar 9 2007 2:00 PM In reply to

    re: Husband's Children Get My House?

    Why did you designate WI as state?

    Actually, MN is an equitable distribution state, to my knowledge. Basically the same thing though.

    "Now we're being told by ... a real estate professional, that absolutely nothing can be done to prevent my husband from leaving the house to HIS children upon his death, leaving my children without any claim to it."

    Based on what information? Not sure why you'd take the word of a realtor, by the way.

    If the house is in your name, it is your property and you are free to leave it to whomever you like. If there happens to be a divorce filed before you die, if you didn't use separate, pre-marital, or gift or inheritance money to pay for the house, husband is free to seek his share of any marital interest in the house.

    If what the husband inherits under your will doesn't meet the state's minimum requirements, however, he's free to elect against the will and take his share. You need to ask a local estate-probate attorney what that share is, and whether you've left him enough to defeat the purpose of a spousal election. It might be a third of your estate; might be half.

  • Fri, Mar 9 2007 2:16 PM In reply to

    • Drew
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    re: Maybe

    It is entirely possible that your wishes are not carried out--that he could be induced to decide otherwise or could so decide on his own --or perhaps even some creditor get into the mix if you were to pass first.

    And your will if it says he is entitled to use it until he dies or moves is NOT in clean legal language as to a true life estate and could cause some major debates if you pass and he say needs to go to a nursing home for an indefinite but likley terminal stay or is unwilling/unable to keep up the place (or the taxes) but HIS kids want to use it!

    Especially if the home is your primary asset it think you may want to revisit this equation soon with counsel and close a few doors in writing with his cooperation. This would be wise in a reqular or a community property state.

  • Fri, Mar 9 2007 2:42 PM In reply to

    • Drew
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    re: Maybe, More

    In Minnesota the homestead provisions may be particularily troubling to your desires if you don't work stuff out in writing in advance?

  • Fri, Mar 9 2007 4:27 PM In reply to

    Note [#=#] re: Husband's Children Get My House?

    I'm just another consumer on the site but would suggest that you contact an attorney that handles Wills and Estate Planning in your State in your area.
    One thing you might want to investigate is a document call Quit Claim with Life Use, if it is even used in your State; which I have no idea as you'd have to speak with an Estate Planning Attorney to find that out.
    But here in New York, Quit Claim Deeds with Life Use basically Deed the property to whomever you choose, you pay all the expenses and upkeep on the property during your life and whomever else you list as having Life Use on the property, then once you and whomever else passes on the property is fully controlled by the parties listed on the Deed. Again I do not know all the facts that is why I am suggesting you investigate it with an Attorney in your area.
    Best of Luck.
  • Fri, Mar 9 2007 4:50 PM In reply to

    re: Husband's Children Get My House?

    I don't think poster in this case would want to gift-deed to kids. No need to, and it might bring up a lot of unintended hassles, e.g., gift tax return filing requirement, possible reassessment of property tax, unintended difference in eventual tax basis for kids, etc.

    She's free to get husband to disclaim any interest in it in writing though.
  • Sun, Sep 5 2010 10:15 PM In reply to

    re: Husband's Children Get My House?

    My husband wants to leave the house to his children if something happens to him.  The house will not be paid for.  His life insurance is also left to his children.  The bills of course will be left to me. What rights do I have in North Carolina.  I will want to live in the house until I die.  But he states he will leave it to his son.  He has had the house only 2 years before I moved in and started paying half of the bills.  The house was refinaced during the marriage and the house value have nearly double.  Help please

  • Mon, Sep 6 2010 11:48 AM In reply to

    • OhioCP
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    Re: Husband's Children Get My House?

    Do you have a will?  If so, what does your will state regarding this property?  Have you updated your will since your marriage?  If the house is left solely to your husband should you die first, then it would be correct that he could chose who to give it to upon his death. If you die without a will, MN law dictates the surviving spouse benefits (see below...bolding was added by me).

    Minnesota does allow for postnutial agreements however.  This might be the way to go, since it seems as if husband is in agreement.  The text is too long to copy/paste here, but this link should help you.


    524.2-102 SHARE OF THE SPOUSE.

    The intestate share of a decedent's surviving spouse is:

    (2) the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, or if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.



    (a) If a testator married after making a will and the spouse survives the testator, the surviving spouse shall receive a share of the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:

    (1) provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

    (2) the will discloses an intention not to make provision for the spouse; or

    (3) the spouse is provided for in the will.

    (b) In satisfying the share provided by this section, devises made by the will other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under section 524.2-603 or 524.2-604 to a descendant of such a child, abate first as otherwise provided in section 524.3-902.

  • Mon, Sep 6 2010 3:59 PM In reply to

    • LynnM
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    Re: Husband's Children Get My House?

    Why are you taking legal advice from a person who sells real estate?

    You need to talk to a probate lawyer in your area about the best way to handle this.

  • Mon, Sep 6 2010 5:17 PM In reply to

    Re: Husband's Children Get My House?

    I am really not.  I am looking for anwser to a couple of questions but you are right I do need to contact a lawyer.  I just needed to know which direction I should go in

  • Mon, Sep 6 2010 5:45 PM In reply to

    • Drew
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    Re: Husband's Children Get My House?

    lets put it this way--unless you get it worked on paper in binding legal form to your satisfaction and hopefully mutual written agreement,  the first to pass has a real risk that the survivor under perhaps pressure from his or her children will elect to do something far different than the original folks thought was mutually intended--or even the survivor runs into economic problems which put creditors ahead of mutual good intentions..

    Get it worked out now as best you can--you cannot return from grave to sort it out if you leave loose ends and somebody unwraps the best laid intentions.

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