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Can My Spouse Contest My Will?

It is not uncommon for a person entering a second marriage to keep certain assets as separate property for the benefit of any children from the first marriage. If you are in this situation, it is important to make sure that your estate planning reflects your intentions so as to avoid any potential misunderstanding with your current spouse. You have every right to leave separate property to your children without interference from your spouse.

Court Rejects Wife’s Estate’s Effort to Claim Husband’s Estate

Unfortunately, there are some cases where a person may still and try and challenge a deceased spouse’s estate plan. A California appeals court recently issued a series of three decisions in a long-running Orange County probate dispute involving the children of now-deceased spouses.

The husband and wife married in 2003. Both spouses were in their 80s and had children from prior relationships. When the couple married, the husband owned a house in Irvine, which he maintained as separate property.

The husband later took out a “reverse mortgage,” which is a type of home equity loan that does not have to be repaid until the borrower sells the house or dies. In this case, the husband’s reverse mortgage incurred approximately $620,000 in debt on his home.

The husband died in 2009. Under the terms of his will, he left the house to his son and his children, subject to a “life estate” for his wife. A life estate means his wife could continue to occupy the home and use its furnishings until her own death, but she otherwise had no right to the property.

The wife’s son, who happened to be an attorney, contested the will, arguing his mother was entitled to the property because, among other reasons, she paid off the reverse mortgage. The court rejected this argument. Furthermore, by challenging the will, the wife violated a “no-contest” clause in the husband’s will, thereby invalidating the life estate.

No longer encumbered by the life estate, the husband’s children decided to sell the house. This led to additional court fights with the wife and eventually her estate, as she passed away while the litigation remained pending. In effect, the wife’s son was now trying to claim he was entitled to inherit the husband’s assets, and that his children could not legally sell the house. The probate court, and later the California Fourth District Court of Appeal, held the wife’s estate’s claims lacked merit and ruled in favor of the husband’s estate.

Do You Need Help Drafting a Will?

An estate plan will not always stop a determined spouse or relative from challenging the distribution of an estate. But as the case above illustrates, a well-drafted estate plan will prevent such a contest from thwarting a person’s clearly expressed intentions. That is why is important to have a will or trust. Contact the Law Office of Scott C. Soady today if you need to speak with an experienced San Diego estate planning attorney about preparing your own will or trust.

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