Can I exclude my husband in my will?

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Latest post 10-21-2009 3:30 PM by Taxagent. 8 replies.
  • 10-21-2009 1:24 PM

    Can I exclude my husband in my will?

    I purchased a house before we were married.  Both of us lived in the home for two years and then we split up.  While living there, he NEVER paid any of the mortgage nor bills.  A year later, we got back together, but we moved to a different state but I still maintained the home through renters. 

    Now I want to write a Will but I do not want him to have any entitlement to the house, I want to leave the house to my sons (of legal age).  Is that possible? 




  • 10-21-2009 1:29 PM In reply to

    Re: Can I exclude my husband in my will?

    Ha! Unfortunately, as long as you are married he has a marital interest in the house starting the day you got married until death/divorce unless he signs a release of sorts. Any increase in equity, improvements, debts, is 50 percent his in theory. I recommend an attorney...quitely. ;)

  • 10-21-2009 1:35 PM In reply to

    Re: Can I exclude my husband in my will?

    You can probably leave it to your son but you need to consult a local attorney to make sure it is properly drafted.

  • 10-21-2009 1:35 PM In reply to

    Re: Can I exclude my husband in my will?

    You can write the will to give the house to your kids. However, NY state law, as does the law of pretty much every other non-community property state, gives your spouse the right to elect against the will and take a statutory share of your estate. In general, in NY his elective share is the greater of $50,000 or one-third of your net estate. See NY Estates, Powers, and Trust Code section 5-1.1-A. If his share of the estate cannot be satisfied from other property of the estate, then the house may have to be sold to do it. As a result, you need to draft the will with his elective share in mind. Generally, you want to give him at least his elective share so that he does not elect against the will and upset your estate plan. The NY law is complex, however, and you'd really need to work through the whole statute or consult an estate planning attorney to help you figure out how this provision would affect your estate and how the will should best be drafted to deal with it.

  • 10-21-2009 1:37 PM In reply to

    Re: Can I exclude my husband in my will?

    The marital interest in a non-community property state affects how property is divided in a divorce. It does not affect how the property is distributed at death.

  • 10-21-2009 2:33 PM In reply to

    • Drew
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
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    Re: Can I exclude my husband in my will?

    Laymans take:

    It may well be possible to give the place to your sons AND keep it out of your estate so its value is not in pot for purposes of any election  Hubby may chose to make against will. If you leave Hubby too smalla % of your estate he has right to elect otherwise--but thats only 1/2 my point--if you remove home from estate its a done deal and not subject to election math. Now some states have laws that try to prevent such  last minute stripping out of the estate but if you happen to be in a state wich does NOT have such a reconstruction feature  you may be able to strip it out ahead of time.


    There may be other ways to do it.

    Now before you say that messes  up the "free" step up on death tax basis you were counting on for sons at your death  --that may not be true if you reserve a written life estate in the property and continue to exercise dominion and control over it----that causes the gift to be treated as defective for federal tax purposes and tossed back into the pot to be taxed anew and stepped up. Usually this defect is a tax problem but sometimes it works as a plus!

    Some  folks apparently design estate so as to favor kids over spouse but I strongly suggest you sort it out with tax or estate counsel now as to what should work in your fact pattern--if you get it wrong and you predecease Hubby its rather hard to come back to sort it out!


  • 10-21-2009 2:41 PM In reply to

    Re: Can I exclude my husband in my will?

    thanks for ALL of the responses.

    Would it be easier if I just sign the deed over to my sons?  I know there are tax consequences for myself and my sons if I do so, but it is better to pay for consequences now than for my sons to not get the house should I die.



  • 10-21-2009 3:27 PM In reply to

    Do not do ANYTHING

    before you talk to a lawyer who can advise you about the consequesces of your actions.

  • 10-21-2009 3:30 PM In reply to

    Re: Can I exclude my husband in my will?

    Would it be easier if I just sign the deed over to my sons?


    It would certainly be "easy" to do, I suppose, though you may need to have your husband sign off on any marital interest to make the transfer a clean one. But the tax consequences may be significantly worse doing that. You might be able to find some other way, like using a trust, that would allow you to achieve the same goal and get a better tax result. Don't be penny-wise and dollar foolish here. Pay a few bucks for an estate planning attorney to advise you.

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