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March 27, 2008 9:00 AM

Wife frets she's not in husband's will

Posted by Elizabeth Rhodes

Q: I want my husband to put my name in his will saying I get half in case something happens to him. But he says he doesn't need to do this because Washington is a community property state so everything is divided 50/50. He also says if something happens to him he's going to let his son give me half the community property. What should I do?

A: Your husband is correct that Washington is a community property state, says Seattle attorney Heidi Gassman. However that doesn’t mean everything automatically will be divided 50/50.

Here’s why: After a marriage, anything the spouses earn or buy is jointly owned by both. So if you purchase a house after your wedding that’s community property.

However, gifts and inheritances are the sole property of the spouse to whom they were given, as is anything the spouse brings into the marriage.

That means a house your husband bought before your marriage is his alone — unless you can show you’ve paid a portion of its costs since then. That entitles you to a share of its value.

You’ll automatically get your share of the community property should your husband precede you. His will controls who gets his share. Perhaps it’s his son, or you, or someone else.

So while your husband says his son will disperse everything, “all the community property wouldn’t go to the son," Gassman observes, because your half wouldn’t be his to pass on.

Gassman suggests you have a really frank conversation with your husband. Voice your concerns. Ask to see his will; doing so is not a breach of privacy among spouses. (You should also confirm his life insurance information is up-to-date; if it isn’t a former spouse could be the beneficiary.)

If you’re still concerned, see an attorney who handles estate-planning and probate issues.


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